Ch. 3-2 The Fifth Amendment Right to Remain Silent CHAPTER 1 2/17/2019 BHS Law Related Education Program Criminal Justice Lesson 3: Criminal Procedure and the Constitution Ch. 3-2 The Fifth Amendment Right to Remain Silent Lesson Objectives Invoking your 5th Amendment Right The Ban on Forced Confessions Requirements for Asserting the Right Against Self-Incrimination Confessions and Counsel Comprehend affect of U.S. Supreme Court decision in Miranda v. Arizona. The Erosion of Miranda. When are Miranda warnings required?

Ch. 3-2 The Fifth Amendment Right to Remain Silent CHAPTER 1 2/17/2019 BHS Law Related Education Program Criminal Justice Lesson 3: Criminal Procedure and the Constitution Ch. 3-2 The Fifth Amendment Right to Remain Silent Invoking your 5th Amendment Right “ Taking the 5th” or “pleading the 5th” refers to the practice of invoking the right to remain silent rather saying something that might be incriminating. (Used against you in court.) This right has important implications for police interrogations, a method that police use to obtain evidence in the form of confessions from suspects.

Ch. 3-2 The Fifth Amendment Right to Remain Silent CHAPTER 1 2/17/2019 BHS Law Related Education Program Criminal Justice Lesson 3: Criminal Procedure and the Constitution Ch. 3-2 The Fifth Amendment Right to Remain Silent The Ban on Forced Confessions If the accused did not have the right to remain silent, the police could resort to threats and torture to coerce a confession. Confessions obtained by threats or torture cannot serve as the basis of a conviction in state or federal courts. The rationale behind this point of law is that forced confessions offend the dignity of human beings, undermine the integrity of government, and tend to be unreliable.

Requirements for Asserting the Right Against Self-Incrimination CHAPTER 1 2/17/2019 Slide 4 BHS Law Related Education Program Criminal Justice Lesson 3: Criminal Procedure and the Constitution Ch. 3-2 The Fifth Amendment Right to Remain Silent Requirements for Asserting the Right Against Self-Incrimination The right against self-incrimination applies mainly to confessions and it pertains only to incriminating communications that are both “compelled” and “testimonial”. If a suspect waives his or her right to remain silent and voluntarily confesses, the government can use the confession against the suspect. The Fifth Amendment protects witnesses from giving testimonial evidence or answering questions that may incriminate them. 4

Confessions and Counsel CHAPTER 1 2/17/2019 Slide 5 BHS Law Related Education Program Criminal Justice Lesson 3: Criminal Procedure and the Constitution Ch. 3-2 The Fifth Amendment Right to Remain Silent Confessions and Counsel How is the Fifth Amendment's right against self-incrimination linked to the Sixth Amendment's right to counsel? Escobedo v. Illinois (1964), the Supreme Court required the police to permit an accused person to have an attorney present during interrogation. Whenever police officers shift their questioning from investigatory to accusatory, defendants are entitled to counsel. 5

Miranda v. Arizona Ch. 3-2 The Fifth Amendment Right to Remain Silent CHAPTER 1 2/17/2019 Slide 6 BHS Law Related Education Program Criminal Justice Lesson 3: Criminal Procedure and the Constitution Ch. 3-2 The Fifth Amendment Right to Remain Silent Miranda v. Arizona Expanding upon Escobedo, the Supreme Court set forth stringent interrogation procedures police must follow to protect suspects 5th Amendment rights. Miranda v. Arizona, 384 U.S. 436 (1966), was a landmark decision of the United States Supreme Court which passed 5–4. The Court held that statements made in response to interrogation of a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of their constitutional rights before questioning by police, and that the defendant not only understood these rights, but voluntarily waived them. 6

CHAPTER 1 2/17/2019 Slide 7 BHS Law Related Education Program Criminal Justice Lesson 3: Criminal Procedure and the Constitution Ch. 3-2 The Fifth Amendment Right to Remain Silent The Erosion of Miranda The Miranda case was decided by the Supreme Court during the due process revolution of the 1960’s. In the 1970s, 1980s, and 1990s, a more conservative Supreme Court narrowed Miranda's scope by allowing police to question suspects and use statements without Miranda warnings. In the event a police officer does not read a defendant their Miranda Rights, the remedy is not always a dismissal of the charges. Any evidence obtained by the police while the defendant is in custody and not Mirandized could be considered inadmissible at trial. 7

When are Miranda warnings required? CHAPTER 1 2/17/2019 Slide 8 BHS Law Related Education Program Criminal Justice Lesson 3: Criminal Procedure and the Constitution Ch. 3-2 The Fifth Amendment Right to Remain Silent When are Miranda warnings required? Police must give the warnings in these situations; When the police have a suspect in custody. Custody usually precedes arrest. When police are interrogating suspects. When police shift their questioning from investigatory to accusatory. When are Miranda warnings not necessary? When police have not focused on a suspect and are questioning witnesses at a crime scene. (Investigatory questioning) When a person volunteers information before the police ask a question. When the police stop and briefly question a person on the street. During a traffic stop. 8