MBE CRIMINAL PROCEDURE: Confessions & Self-Incrimination

5th Amendment Protection

Self-incrimination

5th Amendment Applicability

Compelled, testimonial statements.

Compelled Statement

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

Testimonial Definition

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)

Non-Testimonial Evidence

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

Testimonial Evidence from Lawful Search

Yes.

Government Compelling Testimonial Documents

No

5th Amendment Invocation by Defendant

By refusing to take the stand

5th Amendment Invocation by Witness

By refusing to answer specific questions on the stand

Prosecution Mentioning 5th Amendment Invocation

No, cannot comment on D's refusal to take the stand. Note: Adverse inferences are not prohibited in civil cases.

5th Amendment Non-Application

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

5th Amendment Privilege Waiver

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 comply with the order

Transactional Immunity

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

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

Custody for Miranda Purposes

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

Custody Determination Factors

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.

Miranda Interrogation

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

Coerced Statement Factors

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

Miranda Warning Elements

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

Miranda Warning Timing

Before the interrogation begins

Rights Exercise after Miranda

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.

Silence as Right Invocation

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

Procedure after Attorney Request

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

Public Safety Exception

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)

Undercover Officers and Miranda

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

Miranda Violation Statements Admissibility

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.

Physical Evidence from Miranda Violation

Yes, as long as the statement was not coerced