Self-Incrimination (5th Amendment) & Right to Counsel (6th Amendment)

Fifth Amendment Self-Incrimination

Fifth Amendment Self-Incrimination

Statements made by individuals to the gov’t.

• Any testimonial evidence, but not physical

• Can’t assert if given immunity

Miranda Rights

Once a person is in custody, they must be read Miranda rights prior to any interrogation. Protect statements made as a result of custodial interrogation (i.e. person arrested or not free to leave, but not prison).

1. Right to remain silent

2. Anything you say can and will be used against you in a court of law

3. Right to consult with an attorney

4. Attorney may be appointed if you can’t afford one

5. Right to stop answering at any time

Miranda Interrogations

• If silence affirmatively invoked, questioning must end but can resume after a substantial period + Miranda given again

• If right to counsel invoked, questioning ends (but police don’t have to tell △ lawyer is present)

• Exceptions: threats to public safety, routine booking questions, confessions produced by deceit/undercover police or volunteered

Miranda Evidence

• Involuntary statements: inadmissible if coerced

• Voluntary statements: may be used to impeach but not substantively

• Physical evidence: obtained from non-Mirandized statement is admissible if voluntary/non-coerced

Sixth Amendment Right to Counsel

Provides criminal △ with assistance of counsel for his defense. Automatically attaches upon indictment or formal charges but only for that specific crime.

• Applies at all critical stages

• Applies to all F charges and any M with jail time/suspended sentence

• Noncritical Stages: investigative lineups (pre-indictment), photo arrays, discretionary appeals, parole/probation hearings, habeas proceedings

Photo Array

Neither △ nor lawyer has right to be present, but police must turn over the array to the △.

Lineups

Inadmissible if (1) impermissibly suggestive and (2) substantial likelihood of misidentification.

If in-court ID, prosecution must establish by clear and convincing evidence that witness would ID even w/o suggestive lineup.

• Pre-indictment = no right to counsel

• Post-indict = right to counsel