5th Amendment

Fifth Amendment: Self-Incrimination

Historical Background on Self-Incrimination

  • Comes from maxim “nemo tenetur seipsum accusare” - no man is bound to accuse himself

  • Six states had it in their constitutions 

  • Recommended for federal bill of rights

  • Congress add “in a criminal case”

Early Doctrine on Self-Incrimination

  • Coerced confessions were potentially excludable from trial because they were unreliable

  • Bram v US 

    • Fifth amendment imposed separate restrictions on a confession admissibility

    • Extended to states in the 60s

General Protections Against Self-Incrimination Doctrine and Practice

  • Court has two interests

    • Preservation of an accusatorial system

    • Preservation of personal privacy 

    • Also to words that would link evidence needed to prosecute

  • Applies to police interrogations

  • Cannot be used by or on behalf of an organization or corporation

  • Can suppress documents if they are not known to the government

  • Defendant who takes the stand on their own behalf does so voluntarily 

  • Griffin v. California

    • Court refused to permit prosecutorial comment to jury upon a defendant’s refusal to take the stand on his own behalf 

  • “Needless encouragement test”

    • Assess nature of the choice required to be made by defendants 

      • Second test is created after

Required Records Doctrine

  • Does not extend to corporate figures 

  • Narrows the protection of papers

  • Public records are property of the government 

  • Must be sufficient relation between the activity sought to be regulated and the public concern so that the government can constitutionally regulate or forbid the basic activity concerned

Immunity 

  • Cannot compel a person to be a witness against themself

  • Congress has passed immunity statutes

    • Seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify

  • Counselman v. Hitchcock

    • Rendered immunity statute unenforceable 

    • Two faults

      • Statute did not proscribe derivative evidence 

      • Prohibited only future use of compelled testimony

  • New statute – required transactional immunity in exchange for compelled testimony in Brown v. Walker

  • New statute – replaced all prior immunity states and adopted a use-immunity restriction only 

    • Upheld by Kastigar v. US

Withdrawal of Government Benefits

  • United States v Sullivan

    • 5th did not privilege a bootlegger in not filing an income tax return because return would show illegal happenings

  • Albertson v SACB

    • Struck down order pursuant to statute requiring registration by members of communist party

      • Targets a group

Custodial Interrogation

Early Doctrine and Custodial Interrogation

  • Bram v US

    • Extended doctrinal basis for analyzing admissibility of a confession beyond the common-law test of voluntariness

Pre-Miranda Self-Incrimination Doctrine (40s-60s)

  • McNabb v US

    • Confessions obtained after an unnecessary delay in presenting suspect for arraignment could not be used in trial

    • Concern over coerced confessions

  • Chambers v Florida

    • Prolonged questioning made confession involuntary

  • Ashcraft v Tennessee

    • Confession inadmissible when it was obtained after almost 36 hours of continuous questioning 

  • Stein v New York

    • Must balance the circumstances of pressure against the power of resistance of the person confessing 

Miranda and its Aftermath

  • Prosecutors may not use statements obtained during a custodial interrogation unless the interrogation was conducted pursuant to certain procedural safeguards

  • Withrow v Williams

    • Miranda protects fundamental trial right

Custodial Interrogation Standard

  • Miranda warnings necessary when person is taken into custody and subject to interrogation

  • Miranda safeguards designed to vest a suspect in custody with an added measure of protections

Miranda Requirements 

  • Must be given full warnings prior to interrogation

  • As long as words are “fully conveyed” how they are said doesn’t matter 

  • Edwards rule bars police-initiated questioning stemming from a separate investigation as well as questioning related to the crime for which the suspect is arrested

Miranda Exceptions 

  • Properly informed suspect may wave rights

  • Prosecution has heavy burden to establish that it was voluntary

  • Suspect must be able to understand their rights

  • Court has created a public safety exception to the miranda warnings for serious offenses 

Miranda v. Arizona

Syllabus

  • Defendant questioned in police custody 

  • Not given warning of rights

  • Police got oral admissions 

  • Prosecution may not use statements stemming from questioning initiated by police after person has been taken into custody or otherwise deprived of freedom

    • Fifth amendment covers this under the privilege against self-incrimination

  • Defendant must be told they have right to remain silent 

Question

  • Does the fifth amendment protection extend to the police interrogation of a subject

Opinion of the Court – Justice Warren 5-4

  • Requires that law enforcement advise subjects of their rights during interrogations while in police custody 

  • Told right to remain silent, anything said can and be used against you in a court of law, right to an attorney – if can’t afford one the state will provide one


Dickerson v. US

Facts of the Cause 

  • During questioning about a robbery, Dickerson made statements admitting that he was a getaway driver

  • Police says he was told his miranda rights and waved them

  • Dickerson said he was not read rights until after he gave statement

  • Appeals ruled against Dickerson as he gave statement voluntarily

Question

  • May Congress legislatively overrule Miranda and its warnings that govern the admissibility of statements made during custodial interrogation?

Conclusion

  • No 7-2

  • Miranda governs the admissibility of statements made during custodial interrogation in both state and fed

  • “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture”

Look at Exceptions to Miranda Handout

4/2/25

Birchfield

  • Connected to search incident to an arrest 

  • Court won’t guarantee to uphold the search

  • Court side steps implied consent 

  • Law says its illegal to deny a BAC/blood test 

    • Arrested for suspected drunk driving 

  • Question of the degree of intrusion

    • Breathalizer less intrusive than blood test 

  • Can’t force someone to go to a blood draw because its over intrusive 

  • Invasiveness of the test determines if warrantless search is valid

  • While there’s probable cause or reasonable suspicion that someone is drunk, there can be a warrantless search 

  • Implied consent laws, Court punts on them, can’t be punished for refusing a blood draw (would need a warrant) 

  • Can be punished for refusing a breathalizer 

Michigan v Sitz

  • Supreme court has upheld sobriety checkpoints 

  • Could avoid one (?)

  • Getting to intrusiveness roadblocks do not violate the fourth amendment 

  • No one can seriously dispute the magnitude of the drunken driving problem or the state interest in eradicating it 

Acevedo

  • Police see him enter apartment known to have weed

  • Steps out with paper bag that looks like drug bag

  • He puts it in his car and drives away

  • Police has reasonable suspicion to believe he had drugs 

    • Likely have probable cause but conduct search without a warrant

  • Court affirms automobile exception

    • Deferring a lot of judgement to the police

  • Possible that there could be mistakes and profiling 

  • Police need to give snap judgements 

Stafford v Redding

  • Does fourth amendment prevent stip searches for drug holdings 

  • School does intrusive search and court says that is unconstitutional 

  • Includes adults interacting with minors in an nonconsensual way 

Leon

  • Exclusionary rule (fruits of the poisonous tree)

    • Evidence from an illegal search cannot be used in court

  • Mapp v. ohio incorporates it to states 

  • What were the intentions or belief at the time of the search 

  • If police were acting in good faith at the time of the search it could be admitted 

  • Leon target of police surveillance after police got warrant 

    • Got illegal drugs

    • The affidavit for the search warrant did not establish probable cause (decided after the search)

    • Police thought they had a legal warning 

    • Interest from criminal defendant is to protect right of the criminally convicted

  • Police didn’t abuse their authority 


4/4/25

Fifth Amendment

  • Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law 

  • Balancing act

    • Left: protect individual rights against confessing to crime

    • Right: give police/govt more discretion to induce confession

      • Government wants discretion to get the best evidence and get a confession

  • Pre-Miranda I

    • Voluntariness standard: rooted in due process clause

      • Considering totality of circumstances, was confession voluntary and admissible or coerced and inadmissible 

  • Pre-Miranda II

    • Voluntariness standard: rooted in self-incrimination clause 

      • Malloy v hogan (1964) – incorporates self-incrimination clause to the states

      • Its accusatorial not inquisitorial 

      • A system in which the state must establish guilt by evidence independently and freely secured and may not be coerced proved its charges against an accused out of his own mouth

  • Miranda v Arizona

    • Standards rooted in voluntariness did not establish that police had to inform criminal suspects of their rights

    • The prescriptive series of warnings and guarantees which the court imposed as security for the observance of the privilege

    • Prosecution may not use statements whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effect to secure the privilege against self-incrimination

    • Prior to any question person must be told they have right to remain silent, any statement can and will be used as evidence, right to an attorney, defendant may waive rights provided a waiver is made voluntarily knowingly and intelligently 

  • Key lines of cases have covered

    • Must be given before questioning or interrogation upon taken into custody

    • Must be fully conveyed to suspect

    • After warnings, questioning must cease upon suspect asserting right to silence/request of counsel

    • Suspect may waive rights after being mirandized 

    • Exclusionary rule: confession obtained in violation of miranda cannot be used directly against suspect in court of law (some exceptions)

  • Gradual chipping away at miranda

  • Lawyers find case facts that there are justifiable exceptions to the rule

Dickerson v. US

  • Court is asked to overturn miranda

  • Can congress overrule miranda

  • Congress trying to go back to voluntariness standard

    • Lower level of scrutiny than miranda 

  • Court declines to overrule miranda

    • Strikes down congression provision

    • Doesn’t overcome standard set by miranda 

    • Reliance interest: precedent is so important to society that reversing it would upend society