Rt 2 B Let Alone: 5th Amend.

5th Amend. Intro

  1. No person shall B compelled in any crim. case 2 B a W against himself
  2. Invoking Privilege
    1. Three Elements Before Invoking
      1. Compulsion: W ordered 2 testify by state actor w/pwr 2 sanction refusal like
        1. Contempt citation
        2. Cancelling govt K / benefit
      2. Testimonial
        1. Act / verbal stmt of testimonial / communicative nat.
        2. Not real / phys. evid. leading 2 testimony (gen'ly by others) (Schmerber)
          1. Finger prints
          2. Photo
          3. Meas's
          4. Ct appearance
          5. Voice / written ID where content not imp.
          6. Wearing garments
          7. Gesture
          8. Stand / walk
          9. Drawing blood
      3. Self Incrim.: Ct det's that dir. ans. would lead 2 serious risk of
        1. Crim. conviction alone
        2. Prop. forfeiture if based on crim. adjudication
    2. Exception 2 Privilege Even If Properly Invoked
      1. Person who assumed responsibility as custodian of record / human by K'al rel. w/state where state has partic. int. in the item (record / ch.) can't invoke priv. if ordered 2 prod. by ct order
        1. Custodian ordered 2 prod. persuant 2
        2. Noncrim. regulatory regime
    3. Immunity Stt's
      1. If immunity co-extensive w/5th amend. that Dwill B in same position as if never testified, ok (Kastigar)
        1. Prohibit use / derivative use of testimony
        2. Either trxn'al / use & deriv. use immunity stt's ok
        3. If prosec. after use / derivative use, then heavy burden 2 show all evid. from legit. indep. source

Custodial Interrog.: 5th, 6th, & 14th Amend.

6th Amend. Rt 2 Atty in Cop Quest'ing Env.

  1. Massiah / Brewster Rule
    1. 6th Amend. Rt 2 Atty Attached?
      1. Attach @ critical stage / initiation of adversary proc'gs
      2. Must honor if invoke (Escobedo)
    2. Police Delib'ly Elicit Incrim'ing Stmt?
      1. Police S/M
      2. Incl's trickery
    3. If both yes, excl. stmt unless govt proves waiver

5th & 14th Amend.

  1. Miranda Rules
    1. Safeguarding / Prophylactic Rule
      1. Dang. in inherently coercive env.
      2. Level playing field 4 D 4 indiv. dignity / pvcy underlying 5th amend.
    2. No M Viol's If
      1. Not use stmt even if custodial interrog.
      2. Not interrog. even if thrown in jail
  2. Vol. Stand. Consid. by 14th Before
    1. Indiv. dignity & D's S/M
    2. Law enforcement conduct
    3. Reliability & trustworthiness
  3. Analysis 4 5th Amend. M Rts
    1. If It's
      1. Custodial
        1. Cop dom'ed setting except home & traffic stop sig'ly deprive D's axn
        2. From rsbl D's perspective
          1. Vol. encounter w/some rsbly way out, not custody
          2. Invol. if detained D / forcibly subdued then custody
      2. Interrog.
        1. Express quest'ing by cops /
        2. Fn'al equiv. where words / acts by cops rsbly likely 2 elicit incrim'ing testimonial ans. by looking @ content
      3. Then go on 2 next step but if either element absent, stmt admissible as vol.
    2. Adeq. Warnings Given Per M
      1. Warnings R
        1. Rt 2 remain silent
        2. If not silent then can use stmts against U
        3. Rt 2 atty (limited scope than 6th b/c only 4 quest'ing)
        4. If can't afford atty, then appt atty 4 U
      2. If not given suppress stmt but if did give, then go 2 next step
    3. D Invoked / Waived Rts
      1. Invoked
        1. By obj'ly unequivocally asserting rts
          1. Invocation of rt 2 atty has higher wt. than rt 2 remain silent
        2. Then no quest'ing (suppress if quest'ed) unless D (Edwards)
          1. Reinitiated quest's rsbly rel. 2 investig. +
          2. Waived then stmt's admissible
      2. Waived then stmt admissible (Burbine & Connelly)
        1. Under totality of circ's
          1. Can incl poverty / mental faculty of D
        2. Govt proves by preponderance of evid. that
        3. D relinq'ed rts
          1. Vol'ly so free choice not coercion,
          2. Knowingly / intelligently so understanding nat. of rts & conseq's of waiver +
          3. In absence of police coercion
    4. Exceptions
      1. Stmt's Allowed Even if M Viol / No M Given
        1. Pub. Safety Exception (no M given)
          1. Obj'ly was officer's quest's
          2. Rsbly prompted by int. in pub. safety: then admit
          3. Designed solely 2 elicit incrim'ing stmt: then suppress
        2. Impeach D @ Trial
        3. Waiver
        4. Reinitiation after invocation
    5. Invol'ness: D/P as Final Step
      1. If any stmt still admissible after M, then consid. whether those stmt's R invol. w/in 14th / 5th amend. D/P in which case suppress 4 all purpose
      2. Invol Stand.
        1. Police overreach +
        2. Totality of circ's
          1. Phys. / psych. coercion
          2. Show of force
          3. Food, sleep, med. depriv.
          4. Isolation in length of X
          5. Size of rm, ventilation, temp.
          6. Number / variety of officers
          7. D's phys. / mental state
            1. Ill / injured
            2. Drugged
            3. Age / ed.
            4. Lang.
            5. Familiarity of crim. justice sys.
      3. Bottom line stand.: Need 2 shock the conscience 2 viol. D/P

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12/7/1996

Ms Haeji Hong

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