Fifth and Sixth Amendment Lisa A. Judge Police Legal Advisor Tucson Police Department

Rights to Lawyers and Silence 5th Amendment--rooted in privilege against compelled self-incrimination and due process (PRE-INDICTMENT) 6th Amendment--right to an attorney during all stages of adversarial process. (POST-INDICTMENT)

Questioning a Suspect Has the suspect of questioning been formally charged with a crime, i.e. been indicted, arraigned or had an initial appearance before a magistrate? Has the suspect of questioning been formally charged with a crime, i.e. been indicted, arraigned or had an initial appearance before a magistrate? Yes. The suspect’s 6th Amendment protection applies and may not be questioned regarding the subject matter of the charged offense without an attorney present, or a waiver of the right to an attorney. Questioning about matters other than the crime charged may occur in accordance with the 5th Amendment and Miranda. No. Determine whether Miranda warning necessary, i.e. is person subject to “custodial interrogation?” If so, follow the procedures outlined below. No. Determine whether Miranda warning necessary, i.e. is person subject to “custodial interrogation?” If so, follow the procedures outlined below. Yes. The suspect’s 6th Amendment protection applies and may not be questioned regarding the subject matter of the charged offense without an attorney present, or a waiver of the right to an attorney. Questioning about matters other than the crime charged may occur in accordance with the 5th Amendment and Miranda.

Miranda warnings are not necessary and statements made are admissible. Determine whether Miranda warning necessary, i.e. is person subject to “custodial interrogation?” If so, follow the procedures outlined below. Yes. The suspect’s 6th Amendment protection applies and may not be questioned regarding the subject matter of the charged offense without an attorney present, or a waiver of the right to an attorney. Questioning about matters other than the crime charged may occur in accordance with the 5th Amendment and Miranda. Is the suspect “in custody,” meaning that a reasonable person in the same situation would not feel free to leave? Is the suspect “in custody,” meaning that a reasonable person in the same situation would not feel free to leave? Yes. Then, is the suspect being “interrogated,” meaning either that the suspect is asked specific questions, or officers’ words or actions are calculated to elicit incriminating remarks from the suspect? No. Miranda warnings are not necessary and statements made are admissible. No. Miranda warnings are not necessary and statements made are admissible. Yes. Then, is the suspect being “interrogated,” meaning either that the suspect is asked specific questions, or officers’ words or actions are calculated to elicit incriminating remarks from the suspect?

No. Miranda warnings are not necessary and statements made are admissible. Yes. Then, is the suspect being “interrogated,” meaning either that the suspect is asked specific questions, or officers’ words or actions are calculated to elicit incriminating remarks from the suspect? No. Miranda is not required and any unsolicited or spontaneous remarks made by the suspect are admissible. No. Miranda is not required and any unsolicited or spontaneous remarks made by the suspect are admissible. Yes. The Miranda warnings are necessary and any statements taken without prior Miranda warnings are generally inadmissible in court. Yes. The Miranda warnings are necessary and any statements taken without prior Miranda warnings are generally inadmissible in court.

If Miranda warnings have been given, may questioning take place? No. If suspect invokes the right to have an attorney present, all questioning must stop until the suspect is provided with an attorney to assist during questioning. While it is not absolutely required, it is strongly recommended that you clarify an ambiguous request. No. If suspect invokes the right to have an attorney present, all questioning must stop until the suspect is provided with an attorney to assist during questioning. While it is not absolutely required, it is strongly recommended that you clarify an ambiguous request. No. If suspect invokes the right to remain silent, questioning must cease. Yes, if suspect waives his or her rights under Miranda. Yes, if suspect waives his or her rights under Miranda. No. If suspect invokes the right to remain silent, questioning must cease.

If questioning must stop, may officers reinitiate questioning? If questioning must stop, may the suspect reinitiate questioning? If questioning must stop, may the suspect reinitiate questioning? If questioning must stop, may officers reinitiate questioning? Yes, if the suspect has invoked only the right to remain silent and: 1) there has been intervening time (courts have found several hours to be sufficient) between the first attempt to question and the second attempt, 2) the suspect is re-Mirandized, and 3) the suspect waives his or her rights. Yes, regardless of which right was invoked. Yes, regardless of which right was invoked. Yes, if the suspect has invoked only the right to remain silent and: 1) there has been intervening time (courts have found several hours to be sufficient) between the first attempt to question and the second attempt, 2) the suspect is re-Mirandized, and 3) the suspect waives his or her rights. No, if the suspect has invoked the right to counsel. No, if the suspect has invoked the right to counsel. *Remember, when a suspect invokes any right under Miranda, that right must be “scrupulously honored.” *Remember, when a suspect invokes any right under Miranda, that right must be “scrupulously honored.”

Voluntariness Involuntariness involves actual coercion or coercive police activity which exploits a suspect’s weakness or infirmity. Even when certain factors are present, courts generally find coercive police conduct is a necessary predicate to finding of involuntariness.

Voluntariness Critical inquiry is “whether the defendant’s will was overborne or his/her capacity for self-determination is critically impaired” Courts look at a number of factors including: Mental disability/Education level Age/Sophistication level Language barrier Threats/Deprivation/Promises Familiarity with rights and legal system

Questioning by Undercover Agents or Informants Uncharged suspects/unrelated charges - YES Generally, 5th Amendment and Miranda rules apply (Illinois v. Perkins) Formally charged defendants with counsel - NO 6th Amendment prohibition against questioning about the charged offense (Massiah v. U.S.)

Derivative Statements Unwarned statement preceding lawful, Mirandized statement Subsequent statement may be admissible. Court examines the totality of the circumstances, looking at factors such as: the time between the illegal interrogation and the lawful interrogation, interveneing circumstances, and the flagrancy of the first violation. Oregon v. Elstad, 470 U.S. 298 (1985)

“Tainted” Statement Used for Impeachment Statement must be voluntary. Generally allowed if the violation is negligent/unintentional under Michigan v. Harvey, 494 U.S. 344 (1990) and New York v. Harris, 495 U.S. 14 (1990).

Questioning “Outside Miranda” for Impeachment California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir. 2000) Defense attorneys sued cities, police chiefs and officers based upon policy of intentionally disregarding invocation of Miranda rights in order to obtain impeachment evidence. No qualified immunity for 42 U.S.C. 1983 violation, as right is clearly established.

Scope of Liability for Violation Chavez v. Martinez, 195 F.3d 1039 (9th Cir. 2000) No civil liability for violation where statements not used.

During a struggle with police officers, Oliverio Martinez was shot repeatedly, suffering permanent blindness and paralysis from the waist down.  He was arrested at the scene and taken to the hospital.  Sgt. Chavez accompanied Martinez in the ambulance.  While medical personnel provided treatment, the sergeant persistently questioned Martinez over a 45-minute period.  During the questioning, Martinez frequently said he was "dying" and “choking,” was in extreme pain and believed he was going to die.  Although Martinez said he did not want to talk until after medical treatment, Sgt. Chavez continued questioning and he made incriminating statements about drug use. Martinez was never charged with a crime and the statements he made at the hospital were never used against him in a criminal proceeding. Martinez sued Sgt. Chavez under 42 U.S.C. §1983, alleging that the coerced hospital interrogation violated his Fifth Amendment right against compelled self-incrimination and his Fourteenth Amendment due process right to be free from coercive interrogation. 

The United States Supreme Court held that there had been no violation of Martinez’s constitutional rights. In a split opinion, the Court decided that Sgt. Chavez was not civilly liable for violating Martinez's Fifth Amendment Miranda rights because Martinez was never charged with a crime, and therefore, never compelled to be a witness against himself. The Court reasoned that “mere coercion does not violate the text of the Self-Incrimination Clause absent the use of the compelled statements in a criminal case against the witness."  BUT, the Court left open the possibility that Chavez’ coercive emergency room interrogation did violate Martinez’s Fourteenth Amendment Due Process right and sent that issue back to the trial court for reconsideration. The Court warned that its holding regarding the privilege against self-incrimination does "not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial…"   Chavez v. Martinez, U.S.S.Ct. 2003

On Tap for the Court: and Missouri v. Seibert U.S. v. Patane Fellers v. U.S. and Yarborough v. Alvarado