5th Amendment/Interrogations

The Fifth Amendment

Provides, among other things, that no person shall be compelled in any criminal case to be a witness against himself.

Scope of the Privilege

• Applies to natural person, not corporations or unions

• Applies to testimonial evidence, not physical evidence

Example 25: Fifth Amendment protection does not apply to blood tests or handwriting exemplars.

• Applies to testimony that would be a link in the chain leading to prosecution or conviction

  • As long as there is reason to believe the testimony might lead to future criminal

  prosecution, an individual is entitled to invoke the Fifth Amendment.

• If someone is given immunity from prosecution for their statements, they cannot continue to refuse to answer.

Statements by an individual

• Must be made by the individual to the government.

• Key starting point for the privilege against self-incrimination: Miranda v. Arizona

  • Statements made as a result of custodial interrogation are inadmissible unless they are accompanied by procedural safeguards (i.e., the Miranda warnings)

  • “Custodial”: The person being questioned has been arrested or is not otherwise free to leave (e.g., in the back of a police cruiser).

    • If not in custody, no warning is required. Any statement (or silence) can be used.

    • Someone who is already imprisoned is not necessarily treated as “in custody” for purposes of custodial interrogation. The prisoner is not “in custody” if he is free to be taken back to his cell.

• Interrogation: Involves either the official asking questions or engaging in other words or conduct that police know or should know will elicit a response.

  • Does not include volunteered statements

  • Does not include routine booking questions

Miranda Warnings

o Before conducting custodial interrogations, the police must inform the suspect:

• You have the right to remain silent;

• Any statement you make may be used against you in court;

• You have the right to consult an attorney and to have the attorney present during

questioning; and

• You have the right to have an attorney appointed if you cannot afford one.

o Interrogators must ask whether the defendant understands the rights

• I.e., Defendant understands English, can hear, and actually heard what was said

o No magic words: As long as the substance of the Miranda warnings is communicated, it will

be sufficient

o The police must cease questioning if either of the following occurs:

MW: Invoking the right to remain silent

• If a defendant says she does not want to talk, the interrogation must stop.

• The right must be affirmatively invoked; it is not enough to just remain silent.

• Can resume interrogation after a substantial period of time and giving the warnings again.

MW: Invoking the right to counsel

• Right must be affirmatively invoked: “I want a lawyer.”

• If the right to counsel is invoked, all questioning must stop until either:

i) The lawyer is present, or

ii) The defendant affirmatively initiates contact with police.

Police cannot generally go back to the defendant.

• It is not enough to say, “I think I should talk to somebody,” or “I want to talk to my

parents."

• Police do not have to tell the defendant that a lawyer is trying to reach them.

The Public Safety Exception

When public safety is at risk, the police do not have to give Miranda warnings before questioning.

Interrogation Tactics

o Confessions must be voluntary.

o Statements obtained by threat, even after Miranda warnings, are inadmissible.

Example 30: “We will prosecute you,” is not a threat. “We will beat you up,”

and “We will go and arrest your children,” are threats.

o Confessions can be the product of deceit.

Example 31: It is permissible to tell a suspect that police can peel the off the mask through technology. Police can also use lie detector.

Consequences of Fifth Amendment Violations

• Two categories:

  o Statements obtained involuntarily

  o Statements obtained in violation of Miranda

1. Involuntarily Obtained Statements

o An involuntarily obtained statement is never admissible against a defendant.

Whether to overturn a conviction depends on the harmless error standard.

o Evidence obtained as the result of an involuntary statement (e.g., “Tell us where the body is

buried” while a suspect is at gunpoint) is fruit of the poisonous tree and is presumptively inadmissible.

2. Statements in Violation of Miranda

o Inadmissible in the prosecution’s case in chief, but may be admissible to impeach the defendant to challenge his credibility.

o Evidence obtained as a result of a voluntary statement taken in violation of Miranda is admissible.