Confessions & Self-Incrimination

Question 1

What does the 5th Amendment protect against?

Answer 1

Self-incrimination

More info: Self-Incrimination

Question 2

The 5^th Amendment privilege against self-incrimination only applies to what type of statements?

Answer 2

Compelled, testimonial statements.

Question 3

Under the 5^th Amendment, what is considered a compelled statement?

Answer 3

One that is elicited, coerced, or otherwise induced by a goverment actor (e.g. interrogations, polygraphs, things obtained pursuant to a subpoena).

Question 4

Under the 5^th Amendment, what is considered testimonial?

Answer 4

Written or spoken communications whose primary purpose is to establish or prove past events potentially relevant to later criminal prosecution (e.g. affidavits, prior testimony)

Davis v. Washington

Question 5

Under the 5^th Amendment, what type of evidence is not considered testimonial?

Answer 5

• Observational evidence (e.g. lineups); and
• Physical evidence (urine samples, hair samples, handwriting samples)

Question 6

Is testimonial evidence found pursuant to a lawful search admissible?

Answer 6

Yes.

Question 7

Can the government compel production of testimonial documents (e.g. journals)?

Answer 7

No

Question 8

How can D invoke their 5^th Amendment right against self-incrimination?

Answer 8

By refusing to take the stand

Question 9

How can a witness invoke their 5^th Amendment right on the stand?

Answer 9

By refusing to answer specific questions on the stand

Question 10

Can the prosecution bring D’s invocation of his 5^th Amendment right to the jury’s attention?

Answer 10

No, cannot comment on D’s refusal to take the stand.

⚠️ Note: Adverse inferences are not prohibited in civil cases.

Question 11

When does the 5^th Amendment privilege not apply?

Answer 11

1. Witness/D was granted immunity;
2. Privilege is waived; or
3. Incrimination is impossible (e.g. the statute of limitations has run)

Question 12

Can the 5^th Amendment privilege against self-incrimination be waived?

Answer 12

Yes, D can waive his 5^th Amendment privilege by taking the stand. A witness can waive the privilege by answering questions.

⚠️ Note: Once D has taken the stand, he can not assert the privilege in response to specific questions.

Question 13

Define

testimonial/use immunity

Answer 13

Protects witnesses from their testimony being used against them in a future proceeding

⚠️ Exception: Does not apply if future prosecution is for perjury, giving a false statement, or otherwise failing to comply with the order

Question 14

Define

derivative use immunity

Answer 14

Prohibits police from using evidence derived from the witness’s testimony against him in a criminal proceeding.

For the evidence to be admissible in a future trial, the police must prove it was derived from a source wholly independent of the testimony.

⚠️ Exception: Does not apply if future prosecution is for perjury, giving a false statement, or otherwise failing to complywith the order

Question 15

Define

transactional immunity

Answer 15

Also called “blanket immunity,” protects the witness from future prosecution for all crimes related to his or her testimony

Question 16

What are Miranda rights?

Answer 16

Holds that statements obtained while in custody as the result of direct questioning are inadmissible unless:

1. The police advise the suspect of their rights; and
2. The suspect freely waives those rights

⚠️ Remember: Custody + Questioning *REQUIRES* Warning + Waiver

Question 17

When is a suspect considered in “custody” for Miranda purposes?

Answer 17

When the suspect is in custody at the police station or otherwise not free to leave

Question 18

What factors help determine if a suspect is in custody for Miranda purposes?

Answer 18

Based on the totality of the circumstances. Courts look at:

1. The location of the interrogation
2. The length of the interrogation,
3. The circumstances of the interrogation (e.g. is the suspect locked in a room? Can the suspect come and go?)
4. Whether the suspect had a reasonable belief that he was in custody
5. The age of the suspect (a younger suspect is more likely to be considered in Miranda custody)

⚠️ Note: Incarceration is NOT categorically considered being in Miranda custody.

Question 19

What constitutes an interrogation under Miranda?

Answer 19

• Direct questioning; or
• Words or actions that a reasonable officer knows or should know will elicit an incriminating response

Question 20

What factors are weighed to assess whether a statement was coerced?

Answer 20

Depends based on the totality of the circumstances. Courts weigh:

1. Extent of deprivation of needs;
2. Location, duration, and physical conditions of the interrogation;
3. Use of force, or threat of force;
4. Psychological pressure of the interrogation;
5. Use of deception or trickery;
6. D’s age, health, education, intelligence, gender, and cultural background; and
7. D’s experience with the criminal justice system

Question 21

What are the elements of a Miranda warning?

Answer 21

Police must inform D that he has:

1. A right to remain silent;
2. Anything said can be used against him in court;
3. A right to the presence of an attorney; and
4. If he cannot afford an attorney, one will be provided for him

Question 22

When must Miranda warnings be given?

Answer 22

Before the interrogation begins

Question 23

What must a suspect do to exercise their rights after Miranda warnings have been given?

Answer 23

The suspect must make an clear and unambigous request for an attorney and an affirmative invocation of the right to remain silent.

See “Give me a lawyer, dawg” (or did he want a “lawyer dog”?) as an example of an ambigous request for an attorney which did not properly invoke the right.

Question 24

Does silence constitute invoking the right to remain silent?

Answer 24

No, D must make an unambiguous statement that he is asserting his right to remain silent

Question 25

If a suspect makes an **unequivocal request** for an attorney and to remain silent, can the officers **proceed** with their interrogation?

Answer 25

No. All interrogation must stop until: 1. An **attorney is present** during the interrogation; 2. D **re-initiates the contact** with police; or 3. **Two weeks** have elapsed and the suspect is given a new *Miranda* warning

Question 26

What is the **public safety exception** to *Miranda* warnings?

Answer 26

An officer can question a suspect without violating *Miranda* for **public safety concerns** (e.g. to determine the location of a weapon, find accomplices, etc)

Question 27

Are *Miranda* warnings required if the suspect is speaking to an **undercover officer** or **confidential informant**?

Answer 27

No, **deliberate elicitation** (deliberately and intentionally obtain incriminating information) is allowed without *Miranda* warnings in the context of confidential informants

Question 28

Are statements taken in violation of *Miranda* rights **admissible**?

Answer 28

Yes, the statements can be used to **impeach** D if D takes the stand. Involuntary statements, however, are inadmissible. ## Footnote ⚠️ Note: Statements cannot be used as direct evidence.

Question 29

Is **physical evidence** obtained in violation of *Miranda* admissible?

Answer 29

Yes, as long as the statement was not coerced.