5th Amendment Flashcards
Kastigar v. US
- Gov MAY COMPEL testimony from a witness who has invoked 5th amend right to silence by giving that witness immunity from use of both the compelled testimony and any evidence derived from that testimony in a subsequent criminal proceeding → AKA witness may NOT assert the privilege & refuse to testify if witness has been granted use-and-derivative-use immunity
- Court holds that 5a is only protecting the narrowest possible interp – only the use/derivative; use only testimony that would directly support evidence of a crime, or be used to locate evidence of a crime
Testimonial?
Testimonial:
Oral statements in court in response to questions
Oral statements during custodial interrogation
Non-testimonial:
Physical Evidence (blood, hair, voice, appearance)
Signature or handwriting, even if used to gain access to records.
Salinas v. Texas (5A MUST be Asserted)
- Not self-executing like 4a; failure to assert can be fatal later on
- Puts govt on notice – and they can decide whether or not to grant immunity
- Helps courts adjudicate if involving formal witness testimony
- Generally requires verbal assertion of the privilege
the mere act of remaining silent is, on its own, insufficient to imply the suspect has asserted 5A; absent the suspect’s invocation of 5A—or some exception from the invocation requirement (Griffin, Miranda, Garrity, Leary)—a suspect’s voluntary interactions may be used against them at trial.
- Here, the jury was permitted to draw an adverse inference from the suspect’s silence during voluntary questioning.
- 5th amend argument FAILS b/c Salinas did NOT expressly invoke privilege in response to questions - though there is no formula necessary to invoke privilege, witness does not do so by simply standing mute - b/c he was required to assert it in order to benefit from it – his claim FAILS!!!
- 2 exceptions to ASSERTION requirement → (1) Griffin = criminal D need not take stand & assert privilege at own trial b/c a criminal D has an absolute right not to testify, (2) witness’ failure to invoke privilege must be excused where gov coercion makes his forfeiture of privilege involuntary
Baltimore City of Social Services v. Bouknight (1990)
a person can’t claim 5A protection based upon the incrimination that may result from the contents or nature of an “item” they are demanded to produce.
* Moreover, the 5A protection may not be invoked to resist compliance w/ a regulatory regime constructed to effect the State’s public purposes unrelated to the enforcement of its criminal laws
* Here, D’s refusal to “produce” her child, subject to a protective supervisory order, wasn’t protected by 5A—D can’t claim 5A privilege based upon anything that physical examination of the child might’ve revealed, and the order was pursuant to a regulatory regime unrelated to criminal enforcement.
- Protection against self-incrimination may extend, in some cases, to production orders where compliance would amount to an incriminating testimonial statement about the thing produced (here, for example the mother argues that the act of producing child = testimony)
- BUT, in civil regulatory scheme, 5th amend privilege is NOT GOING TO BAR inherently testimonial statements Even if producing Maurice would amount to an incriminating testimonial statement, mother cannot assert 5th Amend’s protection to avoid production here!!
- Protection against self-incrimination does NOT extend to regulatory production orders required by a system that serves a public purpose unrelated to criminal law enforcement
Police Interrogation
- Miranda Revolution: the regulation of custodial interrogations
- Prior to Miranda, SCOTUS determined the admissibility of jailhouse confessions by assessing “voluntariness” under Due Process Clause torture (beating, whipping) during an interrogation by state officers violated this standard b/c it offended principles of “justice” that were “fundamental”
- Sleep deprivation over a 36-hour custodial interrogation was considered “inherently coercive” and violative of “due process.” Ashcraft v. Tennessee (1944)
- Police conduct, rather than individual will, was the focus of the “voluntariness” analysis BUT what is voluntary and what is not?
- 3 ways for police interrogation to be regulated:
- 1. Due process
- 2. 6th Amendment
- 3. 5th Amendment (Miranda)
Watts v. Indiana (Due Process Case)
: Police took D from jail to police headquarters, questioned by officers for hours into early morning. Same persistent interrogation followed next day for many more hours into early morning hours. A “relay” of 6-8 officers questioned on and off for days. At 3am after having been under questioning since 6pm previous day, he made an incriminating statement.
- Clearly violated due process b/c he was under severe duress
- His statements were not voluntary b/c he was under SUSTAINED PRESSURE by the police - this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation!
- RELENTLESSNESS of such interrogation implies that it is better to answer than to persist in refusing to answer which is his constitutional right
- This was SO GRAVE AN ABUSE OF POWER as to offend due process!!!
- This confession was NOT THE PRODUCT OF FREE CHOICE!
- He agrees that if there is any physical violence, threats, inducements, torture etc. on the person then yeah, their answer is NOT freely given
- BUT can we really say that their answer is not freely given when none of that exists but only that they did not have an ATTORNEY PRESENT? → tough answer for us to conclude on!
- ***court has never held that an ARREST is the formal initiation of a crim prosecution, BUT the const. right to counsel only begins at the BEG OF A CRIM PROSECUTION as per 6th amend!
Massiah v. US (1964) (6A Case)
Massiah suspected of being involved in drug smuggling ring, fed agents searched vessel an found five packages of cocaine. He ad Colson were arrested, arraigned, indicted, but Colson secretly agreed to cooperate w govt and wear a radio transmitter in order to get Massiah to make incriminating statements. Carried out convo in car, agent listened over radio, Massiah made incriminating statements, brought to jury.
6A right were VIOLATED!
he was denied basic protections under 6a when prosecution used his own incriminating words against him, which fed agents had deliberately elicited from him after he had been indicted and in the absence of counsel – stage btwn indictment and trial. [deliberate eliciting of incriminating statements by state agents post-indictment violated right to counsel] created a bright line rule
Escobedo v. Illinois (1964) (Super Narrow Holding)
Escobedo was arrested in connection with a murder and asked for a lawyer. He was not formally charged. Police refused to let the lawyer see Escobedo, and Escobedo asked to see his lawyer again during interrogation but police told him his lawyer did not want to see him. Escobedo made incriminating statements that were used to convict him.
: right to counsel applied btwn arrest and arraignment, not just to post-indictment or arraignment
Six conditions for when Escobdo applies – when the right to 6a rt to counsel applies pre-indictment:
1. Police focus on a particular suspect
2. Suspect in custody
3. Police interrogation to elicit incriminating statements
4. Suspect requests lawyer
5. Police denied lawyer
6. No warning of right to remain silent
This equals 6A violation and cannot use.
Miranda v. Arizona (1966)
: prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the D unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.
PROCEDURE:
- STEP 1: if subject to interrogation, must first be informed in clear and unequivocal terms of right to remain silent. Awareness = threshold req for intelligent decision to exercise & overcoming inherent pressures of interrogation atmosphere.
- STEP 2: warning of right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. Makes aware of priv and consequence of foregoing it.
- STEP 3: must be clearly informed of right to consult w a lawyer and to have lawyer w him during interrogation under system for protecting privilege.
- STEP 4: if he is indigent, a lawyer will be appointed to represent him. [w/o, could possibly understand to mean only have right if can afford]
- STEP 5: if the individual indicates that he wishes questioning to cease or asks for a lawyer, questioning must stop. If indicates that he wants a lawyer, and questioning does not cease, heavy burden on govt to demonstrate that the D knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.
5a privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves
- w/o proper safeguards, the process of in person interrogation of persons suspected/accused contains inherently compelling pressures which work to undermine the individual’s will to restrain and to compel him to speak where he would not otherwise do so freely
o to combat pressures and permit full opp to exercise 5a privilege – accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honors
Post-Miranda Prophylaxis
- Prior to ANY questioning of a suspect in CUSTODY*, the suspect MUST be informed of:
o Right to remain silent;
o That statements made may be used against the suspect;
o Right to presence of attorney;
o If suspect cannot afford an attorney, one will be appointed. - If the suspect expresses right to remain silent or requests counsel, all questioning must cease.
o Note: Miranda does not require furnishing of attorney absent request. - State can show waiver if it meets a “heavy burden” – that D waived rights voluntarily, knowingly, and intelligently
o The existence of a confession does not automatically equal waiver; lengthy interrogation is suspicious.
o Waiver must be “voluntary,” which depends less on the will of the suspect and more on the conduct of the police. Connelly.
Trickery, deception, and fraud indicative of coercion can vitiate potential waiver. - Massiah (post-indictment questioning) remains good law under the 6th Amendment (to be fleshed out later).
*No custody = Miranda 5th Amendment protections do not apply, but other protections could still apply
Effect of 3rd Pathway on the 1st Pathway:
- Miranda displaced the voluntariness test as primary constitutional limit on police interrogation
- But voluntariness matters in two ways:
o Wavier must be, among other things, voluntary
o Due process requires voluntariness cont to apply to confessions, in addt to Miranda & 6a right relied on in Massiah
J.D.B. v. North Carolina (Juvenile Custody Case)
7th grader questioned about burglaries at his school. took him to closed door room, questioned him, never called his guardians, and he confessed. only after confessions was he made aware that he was free to leave.
Does age matter?
In this case it does. so long as a child’s age is known by the officer or objectively apparent to a reasonable officer, it is a factor to consider in the custody analysis; but it is not necessarily determinative and may not always be significant.
court holds that a child’s age properly informs the Miranda custody analysis b/c children will often feel bound to submit to police questioning when an adult in the same circumstance may otherwise feel free to leave
- SO LONG AS AGE OF CHILD WAS KNOWN TO OFFICER AT TIME OF QUESTIONING OR WOULD HAVE BEEN REASONABLY APPARENT TO A REASONABLE OFFICER - officers must include it in the custody analysis consistent w/ the objective nature of that test!
- Whether a suspect is IN CUSTODY = OBJECTIVE INJURY - police officers and courts must examine ALL OF THE CIRCUMSTANCES SURROUNDING THE INTERROGATION!
- This includes any circumstance that would affect how A REASONABLE PERSON IN THE SUSPECT’S POSITION WOULD HAVE PERCEIVED HIS/HER FREEDOM TO LEAVE
Custody Analysis Post J.D.B
- Courts will consider ALL objective circumstances surrounding the interrogation
- Two part inquiry:
o Would a reasonable person have felt free to leave?
How was the individual summoned to the space? Arrested? Removed? Volunteered?
Age (was the police officer aware of age or would a reasonable officer have been aware)
o Was the environment “inherently coercive” (like the station house in Miranda?
Where did Qing occur
How was Qing conducting
Did physical space suggest person could leave
Was person told he/she could leave
Custody: a Functional Approach
Custody:
o Questioning of suspect in his bedroom at 4am. Orozco
o Psychiatric Qing of capital Defendant. Estelle
o Station House Qing. Miranda
o. Questioning of juvenile suspect at school.
Not Custody:
o Voluntary trips to the police station by individuals. Mathiason; Beheler
o Grand jury witnesses. Mandujano
o Investigation focused on suspect, but suspect not arrested yet. Beckwith
o Roadside questions during vehicular stop. Berkemer (even if cop intends, but has not communicated, desire to arrest)
o Required probation meetings. Murphy
o Terry stops
Note: this covers a lot of potentially incriminating statements
Rhode Island v. Ennis (Interrogation Case)
officers having a conversation in car after arresting suspect. talked about how it would be sad if a kid found the gun they hadn’t recovered yet. Suspect led them to the gun so kids wouldn’t find it and he was charged.
this WAS NOT an interrogation. There WAS NO express questioning. nothing more than a dialogue. also NOT the functional equivalent of questioning. no reason for police to believe this would make the suspect talk.
- **functional equivalent = any words/actions on part of police that police should know are reasonably likely to elicit and incriminating response
– Miranda applies whenever a person in custody is subject to either express questioning or its functional equivalent (i.e., any words/actions by the police that the police should know are reasonably likely to elicit an incriminating response.)
* BUT NOT when the suspect is unaware they’re speaking to a police officer (i.e., the officer is undercover) and gives a voluntary statement. (IL v. Perkins)
- That’s b/c there’s no coercion/compulsion or “police-dominated atmosphere” when one is speaking freely w/ someone they don’t know to be a cop—they have no reason to think the person may have power over them like a cop does.
Illinois v. Perkins (interrogation case) (Massiah does not help here)
– police investigating a murder. Respondent is being questioned in a cell w a fellow inmate and an undercover agent. Respondent made incriminating statements: undercover agent asked him if he had ever “done” anybody, after he suggested escape. Respondent said he had: described murder at length.
undercover agent posing as fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. Statements here were voluntary.
- Court says that since he is unaware of who is asking questions, that the extra layer of interrogation compulsion is not present.
- Cannot feel compulsion when he does not know it could lead to incriminating statements that is emblematic of interrogation.
MIRANDA FORBIDS COERCION; NOT STRATEGIC DECEPTION
