2The “Fifth”No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;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;nor shall private property be taken for public use, without just compensation.
3What is Not Covered Under the “5th”? The Statute of Limitation has run.The witness has been granted immunityThe witness cannot be prosecuted due to double jeopardy.
4How the Privilege Against Self-Incrimination is invoked? Prior to arrest and during field interviews, any person may refuse to answer questions.Do you have to answer questions by the police during an interview?No, the police have no duty to inform you may do so.
5Custodial Interrogations During a custodial interrogations the police must inform the suspect of his constitutional rights.KnowingIntelligentVoluntaryCoercion may not be used to persuade a suspect.
6Custodial Interrogations If the defendant chooses not to testify during a trial, the defense attorney will not call the defendant as a witness.Would you as a juror conclude that there is some guilt associated with a suspect who does not testify?The defense attorney’s declaration to the prosecution:My client is innocentYou have no case
7ExceptionIf the defense claims during the closing argument that the defendant never had an opportunity to explain his/her side of the case, the prosecution may inform the jury that the defendant had the right to testify but chose not to.If the defendant lies under oath………
8Non-Testimonial Compulsion The Supreme Court has held that the 5th applies only to testimonial evidence.This means statements that a person makes that are admissions or confessionsOral or writtenThe privilege does not apply to other incriminating evidence that may be obtained from a person
9Non-Testimonial Compulsion Body Fluids???Identifying Features???Exemplars???Sobriety Tests???
10Miranda You have the right to remain silent. if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent.Anything you say can be used against you in a court of law.The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court
11MirandaYou have the right to have an attorney present now and during any future questioning.the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment.an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.
12MirandaIf you cannot afford an attorney, one will be appointed to you free of charge if you wish.it is necessary to warn him/her not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him.Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.
13Miranda When is Miranda Required? Custodial InterrogationsIs Miranda required when an inmate is being questioned by an U.C. officer?No (no coercion, statements are voluntary)Is Miranda required by non-police personnel?Yes (polygraph exams)
14Miranda Exceptions to the Miranda Warning: Public Safety Booking (Biographical & Emergency Info)Public SafetyIf this done to obtain information that is needed immediately in order to protect others from harm.
15Waiver of Miranda Warnings Once Miranda warnings have been correctly given to a suspect who is in custody the police may try to obtain a waiver of the suspect’s rights.The waiver must be:KnowingIntelligentVoluntary
17Miranda Waiver Knowing The suspect must have been correctly advised of his/her rights.The courts require that the police do this correctlyRead from cardHave the suspect sign a waiver form
18Miranda Waiver Intelligent The person has the basic intelligence necessary to understand his/her rightsThis becomes an issue with what groups of people?JuvenilesMentally ImpairedIntoxicated
19Miranda Waiver Voluntary Hard to defineCannot be coerced?Physical force, deprivation of food/sleep for long periods of time?Lies and half-truths by police?If possible, tape record the interrogation, including the process of giving the warning and waiver is useful.
20Sequential Interrogations It is not uncommon for the police to interrogate a suspect more than once.What procedures the police should follow depend on what happened previously.If the confession is voluntary and admissible, the best practice would be to Mirandize any subsequent confessions.
21Prior Interrogation with Valid Miranda Waiver If the first Interrogation was conducted legally and the suspect agreed to talk, and subsequent interrogation can be conducted.If there has been a lengthy delay or, the suspect is likely not to remember his rights, they should be administered again.
22Suspect Invoked Right to Remain Silent If you invoke the right to remain silent after initially waiving the right, must police stop questioning?Can the police try to resume questioning (obtaining a new waiver) and a suspect chooses to remain silent?Can police “harass” a new waiver out a suspect who remains silent?
23Suspect Invoke Right to An Attorney If you are in custody being questioned and request an attorney, can questioning resume or must it stop?If the officer determines that the suspect wants an attorney the suspect have the opportunity to speak with an attorney before questioning can continue if,The suspect asks for an attorneyThe suspect refuse to talk to an officer and requested an attorney.
24Special Situations Suspect Illegally Arrested If an arrest is illegal does Miranda make a confession admissible? (Fruit of the Poisonous Tree Doctrine)Exception: Confessions obtained after an illegal arrest are only admissible if the facts show the “taint” of the unconstitutional act has dissipated.Each case is reviewed on its own merits.
25Special Situations Interrogating Juvenile Suspects Impeachment Care should be taken when advising juvenile suspects of their Miranda rights.A juvenile requesting the presence/speak to their parent is akin to requesting an attorney.ImpeachmentStatements made after an incomplete Miranda warning, or if a warning is not given can be used to impeach during trial.
26Post-Arraignment Confessions The right to counsel “attaches or assigns” itself at the beginning of the court proceeding.Arraignment, indictment, grand juryFrom the time counsel is attached to the “defendant”, police may not interview a suspect without an attorney present unless there is a waiver of the right to counsel .