Unit 5: 5TH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AND MIRANDA Flashcards
Use/Derivative Use Immunity to Compel Testimony
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.
immunity is therefore COEXTENSIVE W/ THE PRIVILEGE AND SUFFICES TO SUPPLANT IT.
The Fifth Amendment is not violated by compelling testimony from a witness granted immunity from use of his or her compelled testimony and any evidence derived therefrom.
the type of immunity provided by the federal immunity statute (use/derivate use immunity) is coextensive with the scope of 5th Amendment privilege and sufficient to compel testimony over an assertion of privilege.
Broader transcational immunity would afford more protection than is required by the 5th Amendment.
how immunity work in practice –
subsequent criminal prosecution of the immunized witness
prosecution must prove that its evidence was derived from a source wholly independent of the withness’s earlier compelled testimony.
To make 5th Amendment Violation Claim
To make out a claim that privilege against self incrimination was violated, claimant MUST SATISFY privileges 3 elements: compulsion, incrimination, and testimony – claimant must expressly assert 5th amendment rights or will lose them
The Meaning of Compulsion
prime example = sworn testimony under threat of legal penalty - formally compelling to testify. like subpoena or threat of contempt but scope extends beyond obvious cases!
custodial interrogation can amount to compulsion - see Miranda cases
Also - Penalties for Invocation: Griffin Rules:
1. Prosecution cannot comment on defendant’s silence;
2. Cannot force defendant to assert privilege in front of jury by calling defendant as witness;
3. Defendant is entitled to jury instruction forbidding negative inferences from remaining silent
What does incrimination mean?
For testimony to incriminate, it must implicate a potential criminal prosecution and punishment.
Courts defer to legislative classification on whether a consequence is criminal.
The testimony also must itself support a conviction, or “furnish a link in the chain of evidence needed to prosecute” under a criminal statute. Hiibel v. 6th Jud. Dist. Cat. Never. (2004)
Note: testimony that will receive use and derivative use immunity cannot, by definition, incriminate, and therefore can be compelled.
What counts as “testimony?”
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
The accused communication must itself explicitly or implicitly relate to a factual assertion or disclose information. Doe v US (compelled signature merely authorized access to bank records, rather than forcing him to disclose the content of his own mind).
The Rule that the 5th Amendment must be ASSERTED
5th amendment is not self executing expressly asserted or it will be lost.
Servers two purposes
1. Assertion puts government on notice that person seeks to rely on privilege allowing government to argue that testimony could not be self incriminating or provide immunity to remove any self incrimination and (2) assertion facilitates creation of a contemporaneous record about existence of the 3 elements of 5th amendment claim, which can help if a court ultimately must resolve the claim.
Voluntarily responding to questions, or remaining silent, prevents later assertion of the privilege when the testimony or physical evidence during the questioning is used by the government. Salinas (body language during voluntary interview); Murphy (statements during meeting with probation officer);Brogan (voluntary statements to investigators).
Salinas v Texas - 5th amend argument fails because 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 staying mute because he was required to assert 5th amendment in order to benefit from it - his claim fails.
Exceptions to Express Assertion Requirement: some custodial interrogations (dealt with later); invocation at trial in front of jury (Griffin); governmental/public benefits “penalty” situations
Griffin = criminal defendant need not take stand and assert privilege at own trial because a criminal D has an absolute right to testify.
witness’ failure to involve privilege must be excused where government coercion make his forfeiture of privilege involuntary.
5th Amendment Privilege v. Governmental Interest: Balancing or Not?
Only natural persons can claim the privilege. Hale v. Henkel (1906).
The government can requireindustries to turn over business recordsin order to ensure compliance with and enforce a civil regulatory regime IF:
(1) there is a records requirement;
(2) there is a public interest;
(3) the requirement is not to pursue criminal investigation. Marchetti v. United States (1968);Shapiro v. United States(1948).*
*Not a balancing test.
Limiting 5th Amendment Privilege
Baltimore City Dept of Social Services v Bouknight (1990)
In civil regulatory scheme, 5th amendment privilege is not going to bar inherently testimonial statements – even if producing Maurice would amount to an incriminating testimonial statement, mother cannot assert 5th amendment 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.
The Regulation of Custodial Interrogations - Legal History and Confessions
Prior to Miranda, SCOTUS determined the admissibility of jailhouse confessions by assessing “voluntariness” under the Due Process Clause.
Torture (beating, whipping) during an interrogation by state officers violated this standard because it offendedprinciples of “justice” that were “fundamental.” Brown v. Mississippi (1936).
Sleep deprivation over a 36-hour custodial interrogationwas considered “inherently coercive” and violative of “due process.” Ashcraft v. Tennessee (1944).
Police conduct, rather than individual will, became the focus of the “voluntariness” analysis.
3 ways for police interrogation to be regulated
- Due Process
- 6th Amendment
- 5th Amendment (Miranda)
Intense and coercive police interrogation
Clear violation of due process.
Watts v Indiana was under severe duress. He was a prisoner in exclusive control of prosecuting authorities and had been in solitary confinement given no hearing was without friendly or professional aid, without advice as to his constitutional rights – had been treated very inhumanely - no food or sleep.
His statements were not voluntary because he was under sustained pressure by the police this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation.
This was so grave an abuse of power as to offend due process!!
This confession was not the product of free choice.
Massiah v . US
Long-established constitutional principle that from time of that from time of a Ds arraignment until beginning of trial, Ds are entitled to such AID of counsel during the most critical period - period of consultations, investigation and preparation - just as much as they are entitled to counsel at trial itself.
6th amendment is violated if an informant working with law enforcement agents deliberately elicits an incriminating statement from a defendant who has been charged.
Police informant create critical stages by eliciting incriminating statements from charged defendants.
Developing Messiah: Escobedo v. Illinois (Prior to Miranda)
Prior to Miranda must prove suspects knowingly and intelligently relinquished 5th amendment right against self-incrimination and 6th amendment right to counsel before making any confession.
The 6th amend right to counsel applies to pre-arraignment interrogations of suspects
When an investigation is focused on a suspect in custody, the suspect is denied counsel, and the police haven’t warned of the right to remain silent, any statements made during that interrogation is deemed inadmissible because the 6th amendment has been violated.
The 6th amendment right to counsel applied before trial, once adversarial proceedings have begun, which may occur before or after a suspect’s arraignment.
Escobedo set forth principles later adopted in Miranda that the right to counsel extends to pretrial interrogation and police must advise of the right to remain silent.
RULE: Where investigation is no longer a generally inquiry into an unsolved crime - as is here - but has begun to focus on a (1) PARTICULAR SUSPECT, (2) suspect has been taken INTO POLICE CUSTODY, (3) policy carry out a process of INTERROGATIONS that lends itself to eliciting incriminating statements, (4) suspect has REQUESTED AND BEEN DENIED an opportunity to CONSULT W/ HIS LAWYER and (5) police have NOT effectively warned him of his right to remain silent = accused has been denied assistance of counsel in VIOLATION OF 6TH AMEND
- **a singular focus by law enforcement starts to look a lot closer to a prosecution
6th Amendment Critical Stages
A person charged with a crime has the right to assistance of counsel during all critical stages of the prosecution.
Post-Miranda Prophylaxis (5th Amendment)
Prior to ANY questioning of a suspect in CUSTODY*, thesuspect MUST be informed of:
- Right to remain silent;
- That statements made may be used against the suspect;
- Right to presence of attorney;
- 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.
Note: Miranda does notrequire furnishing of attorney unless requested.
State can show waiver if it meets a”heavy burden.”
- The existence of a confession does not automatically equal waiver; lengthy interrogation is suspicious.
- 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
