CrimPro - FIFTH AMENDMENT

FIFTH AMENDMENT: What does it guarantee?

No person shall be compelled in any criminal case to be a witness against himself.

FIFTH AMENDMENT: Who may assert the privilege?

• ONLY NATURAL PERSONS (not corporations/associations etc)

• The PRIVILEGE IS PERSONAL and can be asserted by a party ONLY when his testimony will incriminate himself. Will not protect individual whose testimony will incriminate another.

• Privilege may be asserted by attorney on behalf of a client.

FIFTH AMENDMENT: When may the privilege be asserted?

• Can be invoked in any proceeding if the answer may incriminate in a future criminal prosecution

• Must be claimed when questioned

• Criminal defendant may simply choose not to testify.

FIFTH AMENDMENT: What is the SCOPE of the privilege?

• An individual may REFUSE to answer any question IF the answer might furnish a “link in the chain of evidence needed to prosecute.”

• The privilege also protects acts of production (e.g., producing documents) if doing so is itself testimonial and incriminating.

• It does not apply solely to fear of foreign prosecution.

FIFTH AMENDMENT: Under SCOPE of privilege, what can and can’t the government compel a defendant to do?

• Protects what you SAY, not what you ARE.

• Privilege against self incrimination ONLY protects COMMUNICATIVE (testimonial) evidence - NOT physical evidence and AS SUCH:

  • GOVT MAY COMPEL:

    • Blood sample, prints, voice exemplar, handwriting exemplar, photograph, line up, in court identification, signature

  • GOVT MAY NOT COMPEL:

    • Custodial interrogation without Miranda warning

    • Polygraph examination

    • EXCEPTION:

      • GOVT MAY ask ROUTINE booking questions without Miranda

      • Slurred speech may be videotaped and admitted as physical evidence

FIFTH AMENDMENT: Under SCOPE of privilege, discuss BOOKS PAPERS AND DOCUMENTS:

• The Fifth Amendment generally does NOT protect the contents or production of documents. Producing documents is usually not considered testimonial.

• ✅ Government can compel a corporate officer to produce corporate records.

• ✅ The officer cannot invoke the Fifth Amendment to resist the subpoena.

• ❌ However, the act of producing the records cannot be used personally against the officer at trial.

FIFTH AMENDMENT: Under SCOPE of privilege, discuss prosecutor’s comments on defendant’s silence

• ❌ Prosecutor cannot comment on the defendant's failure to testify or suggest guilt from the defendant's silence.

  • EXCEPTIONS:

    • Harmless Error: Conviction may still stand if the improper comment was harmless because the evidence of guilt was overwhelming.

    • Fair Response: Prosecutor may respond to defense claims that the government prevented defendant from explaining actions.

    • Testifying Defendant: If the defendant chooses to testify, the prosecutor may argue the defendant tailored his testimony after hearing other witnesses.

FIFTH AMENDMENT: Under WAIVER of privilege, discuss waiver by witness other than the defendant and waiver by the defendant:

WAIVER BY WITNESS:

• Waives the privilege by failing to assert it when asked an incriminating question OR voluntarily making a partial disclosure

WAIVER BY DEFENDANT:

• Waives privilege by testifying, but only waived as to matters covered on direct examination and credibility

  • No waiver when testifying only on preliminary matter

NOTE: PRIVILEGE DOES NOT APPLY WHEN THERE IS NO RISK OF INCRIMINATION.

NO INVOCATION, NO PROTECTION. TESTIFY, WAIVE. NO RISK, NO PRIVILEGE.

FIFTH AMENDMENT: VOLUNTARY CONFESSIONS rule and considerations?

• A CONFESSION is admissible ONLY if voluntary under due process clause using the following TEST:

  • Confession product of FREE and UNCONSTRAINED CHOICE?

    • Consider:

      • Defendant’s characteristics, nature of detention, manner of interrogation, police coercion.

FIFTH AMENDMENT: VOLUNTARY CONFESSIONS ADMISSIBILITY IF there is a CLAIM of constitutional violation rule?

• State appeals courts determine whether coerced confessions were HARMLESS ERROR or if they were REVERSIBLE ERROR.

FIFTH AMENDMENT: When are MIRANDA warnings required and what is the warning?

• CUSTODY + INTERROGATION by a GOVERNMENT AGENT

• Right to remain silent, statements can be used against you, right to an attorney, appointed attorney if indigent

  • Exact wording not required, and does not apply to informants or private citizens

FIFTH AMENDMENT: For MIRANDA purposes, what does CUSTODY mean?

• Would a REASONABLE PERSON believe they were not free to leave?

  • Test is objective

  • Does NOT apply to traffic stops or Terry stops UNLESS they become LENGTHY and RESTRICTIVE

• ARREST-LIKE = CUSTODY

• Even if police believe there is custody, if there is no actual custody, MIRANDA is NOT required. NO CUSTODY? NO MIRANDA REQUIRED.

FIFTH AMENDMENT: For MIRANDA purposes, what counts as interrogation?

• DIRECT QUESTIONING OR

• POLICE WORDS/ACTIONS REASONABLY LIKELY to elicit incriminating response

  • Does NOT include spontaneous blurts, routine booking questions, conversations not designed to elicit statements.

FIFTH AMENDMENT: What are the MIRANDA EXCEPTIONS during INTERROGATION?

• Routine booking questions

• Spontaneous or volunteered statements

• PUBLIC SAFETY EXCEPTION - Miranda not required to ask questions to preserve public safety

• Undercover informant questioning

FIFTH AMENDMENT: What happens if suspect invokes right to remain silent during interrogation?

• STOP QUESTIONING immediately

• Police MAY resume later if they:

  • Scrupulously honor the request

  • Wait significant time

  • Question about a DIFFERENT crime

FIFTH AMENDMENT: What happens if the suspect invokes right to counsel during interrogation?

• Police CANNOT question again until:

  • Counsel present OR suspect initiates conversation

• Applies to ALL crimes

• Police CANNOT reinitiate unless 14 days have passed

• Request to invoke must be unambiguous

FIFTH AMENDMENT: When is a MIRANDA waiver valid for an interrogation?

• The waiver must be:

  • Knowing

  • Intelligent

  • Voluntary + totality of circumstances

• Police do not need to tell suspect of every crime he is being investigated for

• Suspect’s invocation for counsel before signing any statements did not invalidate oral confession

• Police trickery does not damage a waiver so long as the trickery does not affect the content of the warning

FIFTH AMENDMENT: Invocation vs Waiver for Miranda - How do you invoke Miranda?

• SILENCE ALONE NOT ENOUGH

• MUST CLEARLY AND UNAMBIGUOUSLY INVOKE

  • Speaking voluntarily = implicit waiver

FIFTH AMENDMENT: What is the effect of a MIRANDA violation?

• Statements obtained in violation of Miranda are inadmissible BUT conviction may stand if error was HARMLESS

  • Exception: Voluntary statement obtained in violation of Miranda may be used to impeach defendant if he testifies inconsistently

FIFTH AMENDMENT: Under Miranda, are post-warning confessions admissible?

• Intentional two-step interrogation (question first, warn later) is inadmissible

  • Accidental failure to do so MAY be admissible.

FIFTH AMENDMENT: Fruits of a Miranda violation - Can physical evidence found from an unwarned statement be used?

• Physical evidence discovered from unwarned statement is generally admissible even if statement is excluded.

• Courts consider police bad faith but Miranda does NOT automatically exclude derivative physical evidence.

• SUPPRESS THE STATEMENT NOT THE STUFF.

FIFTH AMENDMENT: What is DOUBLE JEOPARDY in the fifth amendment say?

• No person shall be subject to be twice put in jeopardy for the same offense.

FIFTH AMENDMENT: What are the area’s of protection for Double Jeopardy?

• Protects only repetitive criminal prosecutions. Cannot be prosecuted for second time for same offense involved in first trial, NOR receive more than one punishment for the SAME offense.

FIFTH AMENDMENT: Under double jeopardy, what is a “Same Offense” under the Blockburger Test?

• Two crimes are NOT the same if EACH requires proof of one or more element that the other does not. (Sexual Assault and Murder are different. Robbery and Larceny = same because lesser included offense)

• LESSER INCLUDED OFFENSES = Trial for the greater bars later prosecution of the lesser, AND vice versa.

  • EXCEPTION: If new element arises later (battery but victim later dies (murder)), prosecution for greater offense is permitted

FIFTH AMENDMENT: Under double jeopardy, how do multiple punishments and the crime of conspiracy work?

• MULTIPLE PUNISHMENTS: You cannot receive separate punishments for a greater offense and lesser included offense UNLESS legislature authorizes cumulative punishments.

• CONSPIRACY = Always a separate crime, can defendant cant be punished for BOTH conspiracy + substantive offense.

FIFTH AMENDMENT: Does double jeopardy apply to civil proceedings?

No - Double jeopardy protects only against multiple criminal prosecutions or punishments. Thus you could be sued by the government and prosecuted by the government for criminal conduct.

FIFTH AMENDMENT: Do civil penalties raise double jeopardy concerns?

• If a civil fine or penalty is remedial, there is no double jeopardy violation

• HOWEVER, if they are PUNITIVE fines, they may trigger double jeopardy concerns.

FIFTH AMENDMENT: When does Jeopardy attach in the following situations:

Jury Trial, Bench Trial, Juvenile Proceedings?

Jury Trial: When Jury is impaneled and sworn

Bench Trial: When the first witness is sworn

Juvenile Proceedings: When the adjudicatory hearing begins

FIFTH AMENDMENT: Regarding double jeopardy, can the defendant be retried after a mistrial? Discuss Manifest Necessity

• If the defendant requests or CONSENTS to mistrial, then a retrial is allowed UNLESS prosecutor or judge acted in bad faith to provoke the mistrial

• If the defendant OBJECTS to mistrial retrial barred UNLESS there was manifest necessity.

  • MANIFEST NECESSITY occurs when there is a necessity for a retrial which occurs when there is a:

    • Hung Jury, Judge or Juror dies/ill, defendant falls seriously ill.

FIFTH AMENDMENT: Under double jeopardy, what is the Dual Sovereignty Doctrine?

• Same conduct may be prosecuted by different State or Federal government because they are two different sovereigns.

FIFTH AMENDMENT: Under Double Jeopardy, Can the prosecution retry after conviction is reversed?

• If the conviction is reversed for a reason unrelated to guilt, RETRIAL PERMITTED

• If reversal is based on insufficiency of evidence, RETRIAL PROHIBITED

  • (LEGAL ERROR = RETRY, NO EVIDENCE = NO RETRY)

FIFTH AMENDMENT: Under Double Jeopardy: What is collateral estoppel?

Collateral Estoppel is when a jury decides an ultimate issue of fact in the defendant’s favor, the same sovereign cannot re-litigate that issue in a later criminal case.

LOSE THE FACT ONCE = CAN’T TRY IT AGAIN

FIFTH AMENDMENT: Under Double Jeopardy, when does Collateral Estoppel apply?

• Collateral estoppel only applies if:

  • The identical ultimate fact was decided in the first trial

  • The fact is essential to the second prosecution

    • The prosecution is by the same sovereign

FIFTH AMENDMENT: Under Double Jeopardy, when does collateral estoppel NOT apply?

• Collateral estoppel does NOT apply when:

  • If the first trial did not decide the fact.

  • If the fact is only evidentiary, not an ultimate element of the offense

  • If the second prosecution is by a different sovereign.