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5th Amendment - Coggle Diagram

- - - - Testimonial (shows thought process)
        
        non testimonial: Slurred speech, address, etc
        
        testimonial not being able to do a math problem
      - Compelled from gov agent
      - Must be a person, not company
      - statement must be incriminating
        
        criminal punishment
        
        communication will lead to punishment
        
        link in chain to evidence that will lead to conviction or confession
      - in a civil case a jury can draw an inference from 5th amd assertion
      - Fruit of the poisonous tree applies here! Does not apply to Miranda.
  - - - 2. does miranda apply
        
        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
        
        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
        
        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
        
        Officer interrogates before giving warnings and D confesses
        
        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
      - 1. did the D make a statement
      - 3. Proper warnings 4. assertion and 5.respect (related to the custody, not the crime)
        
        how to invoke? assertion
        
        YES: I'd like to get a lawyer
        
        related to the custody, cannot be questioned about different crime after asserting rights
        
        NO: maybe i should talk to a lawyer
        
        Standard: would a reasonable officer understand the statement to be an invocation
        
        respect invocation
        
        remain silent
        
        stop questioning but can resume after adequate break
        
        once released from custody have to reassert rights
        
        right to counsel
        
        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)
        
        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
      - 6. was there valid waiver (does not have to precede interrogation)
        
        was it Volunitary?
        
        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
        
        was it "knowing and intelligent"?
        
        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
        
        did suspect waive?
        
        ways to waive
        
        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
        
        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
      - 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
        
        officer Good Faith necessary, cannot be a tactic
        
        Miranda violation of D-> 3rd party statements incriminating D-> no supreme case
        
        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
    - - 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