Fifth Amendment Rights and Privileges

Privilege against compulsory self-incrimination

1. Scope—extends to civil and criminal actions

2. Waiver—defendant taking stand on own behalf cannot claim privilege against crossexamination on matters reasonably related to subject matter of direct examination

Fifth Amendment in a police interrogation context

1. Trickery

2. Invoking Miranda rights

3. Miranda waiver

4. Custodial interrogation of minors

5. Corpus delicti rule

Fifth Amendment in a police interrogation context - Trickery

—statement obtained from deceptive tactics; DE courts consider whether trickery so coercive it overcame defendant’s will to make rational choice

Fifth Amendment in a police interrogation context - Invoking Miranda rights

• Clarification—if suspect ambiguously invokes, police must clarify suspect’s intention in noncoercive and nonintimidating way before continuing

• Consulting opportunity—if lawyer arrives before or during custodial interrogation, police must inform suspect of lawyer’s presence and give opportunity to consult lawyer

• Presumption—heavy presumption against waiver if: (1) suspect told police he only wanted to communicate through lawyer, (2) suspect has an attorney, and (3) lawyer is present and denied access to client or repeatedly advised police that no interrogation was to occur

• Right to remain silent—once invoked, any subsequent statement is only admissible if prosecution shows suspect: (1) reinitiated contact with police and (2) validly waived previous invocation

Fifth Amendment in a police interrogation context - Miranda waiver

—two-part test to determine if waiver was effective; waiver must be: (1) voluntary and (2) made with full awareness of nature of right and consequences of waiver

Fifth Amendment in a police interrogation context - Custodial interrogation of minors

—child’s custodian (e.g., parent) must be notified of child being in custody; absence of custodian during custodial interrogation does not per se invalidate statements (but is considered under totality of circumstances test)

Fifth Amendment in a police interrogation context - Corpus delicti rule

—prosecution must show evidence of a crime independent of defendant’s confession