5th Amendment
Due Process
5th Amd
violated at the moment actual coercion. cannot deprive any person of life liberty or property
Self incrimination clause route for actual coercion
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Testimonial (shows thought process)
Compelled from gov agent
Must be a person, not company
non testimonial: Slurred speech, address, etc
testimonial not being able to do a math problem
Immunity
transactional immunity
Derivative use immunity
Cannot assert the 5th, for what they have immunity for
Govt cannot use a immune statement to lead to evidence against immune party
does not have to be accepted by the defendant
TV immunity, example Govt want statement against high person but has evidence against you, this would nullify the evidence the gov has against you.
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When you don't have to assert the 5th
subject to actual coercion
assertion of the privilege is incriminating
defendant in criminal trial
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statement must be incriminating
criminal punishment
communication will lead to punishment
in a civil case a jury can draw an inference from 5th amd assertion
Miranda route for implied coercion
steps of miranda
use immunity (miranda, pleading the 5th)
2. does miranda apply
1. did the D make a statement
Is there custody?
not custody :voluntary or subpoenaed by grand jury
Standard: reasonable person under circumstances feel free to leave?
sentenced psych visit or bedroom at 4am with 4 officers is custody
age known to officer is considered in the reasonable person test
Interrogation?
asserts a rights and officer continues to interrogate until confession
Officer interrogates before giving warnings and D confesses
- interrogation: if there was a direct question
- Interrogation if there was a direct question
- no direct question was it the functional equivalent to interrogation and a reasonable officer would have know it would lead to a statement
- no direct question, was it the functional equivalent to interrogation and a reasonable officer would have know it would lead to a statement
Not interrogation
undercover officer in jail getting a confession, not a police dominated atomosphere, defendant was just hanging out with cell mate
Wife talking to husband while recorded to convince him to confess, police didn't create the pressure
3. Proper warnings 4. assertion and 5.respect (related to the custody, not the crime)
how to invoke? assertion
respect invocation
warnings= miranda or something at least as effective, does not have to be exact
anything said can and will be used against them
right to consult with a lawyer and have them present during interrogation
right to remain silent
lawyer will be appointed
YES: I'd like to get a lawyer
NO: maybe i should talk to a lawyer
Standard: would a reasonable officer understand the statement to be an invocation
remain silent
right to counsel
stop questioning but can resume after adequate break
once released from custody have to reassert rights
stop questioning, can resume only when counsel is present UNLESS D initiates convo with police
protection continues for sometime after leaving custody, (enough time to dissipate the coercive effects of being in custody)
related to the custody, cannot be questioned about different crime after asserting rights
6. was there valid waiver (does not have to precede interrogation)
was it Volunitary?
was it "knowing and intelligent"?
did suspect waive?
ways to waive
Routes to possible waiver
asserts right to counsel, respected, and D initiates conversation that leads to interrogation
asserts rights to counsel, respected, and makes statement anyways
asserts right to silence but makes statement anyways
Makes a statement without asserting rights
explicitly waives, oral or written waiver
remains silent
proponderence of evidence that a reasonable police officer thought D understood the rights and
Course of conduct indicates waiver, acting in manner inconsistent with invoking rights
free and deliberate choice, would a reasonable officer understand this a voluntary
can lie to defendant but not about rights
can lie to a lawyer
can be deceptive
they need to know that they understand english helps
must know the nature of the right being abandoned and the consequence of abandoning it
does not mean that it was a smart decision
okay to lie about crime, sympathy, undercover officers, about facts, or omission of facts, to lawyer
is Miranda a constitutionally based holding?
yes: there can be no doubt that 5th amendment privilege is available outside of criminal court proceedings
yes: if miranda isn't constitutional, then there is a separation of powers issue, because congress passed 3501 and the courts stuck with miranda for 30 years, hence miranda must be constitutional
No: 5th Amd doesnt require miranda style warnings
Yes: they were applying miranda to the states, and if it wasn't a const. issue they shouldn't have been applying it to the states
No: miranda court didn't say that miranda warnings were Per Se required
Dickerson holding affirmed miranda for "yes" reasons below, 3501 test was not as affective as miranda
7. does the law require statement suppression? (No Fruit of the Poisonous Tree) Different Standard for Miranda
subsequent statement ( no warnings before statement then get same statement after warnings) 2 step approach
Concur: exclude fruits unless failure to warn was in good faith (cannot have a plan) due process (not miranda)
Concurence: where police deliberately use a 2 step approach, exclude 2nd statement with substance related to 1st unless curative measures are taken previously
plurality: would a reasonable D in the situation have understood new warnings to convey that she had a choice about continuing to talk
Dissent: voluntariness, 1. ask if the taint dissipated before 2nd statement 2. if involuntary suppress
would a reasonable officer under the circumstances know that his statements would illicit an incriminating statement from a reasonable suspect with the same personal inclinations that the officer is aware of
Fruit of the poisonous tree applies to Due process not miranada
Fruit of the poisonous tree applies here! Does not apply to Miranda.
8. does the law require derivative physical evidence to be suppressed? (No Fruit of the Poisonous Tree) Different Standard for Miranda
physical evidence should be admitted because 5th is not implicated by physical evidence (Patane v united states) only statement are suppressed
Plurality: 1. 5th amd clause is not implicated by admission of physical evidence 2. mirand violation presents no constitutional violation until statement is introduced. 3. no poisonness tree
Dissent: 1. use fruit of the P tree to aboid creating incentive for police to omit miranda warnings 2. no pulblic emergency
Concur in judgment: balancing test concerning underlying miranda must be accommodated to other objective of criminal justice system
officer Good Faith necessary, cannot be a tactic
Miranda violation of D-> 3rd party statements incriminating D-> no supreme case
link in chain to evidence that will lead to conviction or confession