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What is protected by the 5th Amendment? 


More info: Self-Incrimination


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

Compelled, testimonial statements.


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

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



Under the 5th Amendment, what is considered testimonial?

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


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

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


Is testimonial evidence found pursuant to a lawful search admissible? 



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



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

By refusing to take the stand 



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

By refusing to answer specific questions on the stand 


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

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

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


When does the 5th Amendment privilege not apply?  

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



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

Yes, D can waive his 5th 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. 


testimonial/use immunity

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


derivative use immunity

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



transactional immunity 

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


What are Miranda rights?

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


When is a suspect considered in "custody" for Miranda purposes?

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


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

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.


What constitutes an interrogation under Miranda?

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


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

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


What are the elements of a Miranda warning?

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


When must Miranda warnings be given?

Before the interrogation begins


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

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.


Does silence constitute invoking the right to remain silent? 

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


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

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


What is the public safety exception to Miranda warnings?

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) 


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


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


Are statements taken in violation of Miranda rights admissible?

Yes, the statements can be used to impeach D if D takes the stand. Involuntary statements, however, are inadmissible. 

⚠️ Note: Statements cannot be used as direct evidence.


Is physical evidence obtained in violation of Miranda admissible? 

Yes, as long as the statement was not coerced.