Rt 2 B Let Alone: 5th Amend.
5th Amend. Intro
- No person shall B compelled in any crim. case 2 B a
W against himself
- Invoking Privilege
- Three Elements Before Invoking
- Compulsion: W ordered 2 testify by state actor w/pwr 2 sanction
- Contempt citation
- Cancelling govt K / benefit
- Act / verbal stmt of testimonial / communicative nat.
- Not real / phys. evid. leading 2 testimony (gen'ly by others)
- Finger prints
- Ct appearance
- Voice / written ID where content not imp.
- Wearing garments
- Stand / walk
- Drawing blood
- Self Incrim.: Ct det's that dir. ans. would lead 2 serious
- Crim. conviction alone
- Prop. forfeiture if based on crim. adjudication
- Exception 2 Privilege Even If Properly Invoked
- 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
- Custodian ordered 2 prod. persuant 2
- Noncrim. regulatory regime
- Immunity Stt's
- If immunity co-extensive w/5th amend. that Dwill B in same
position as if never testified, ok (Kastigar)
- Prohibit use / derivative use of testimony
- Either trxn'al / use & deriv. use immunity stt's ok
- 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.
- Massiah / Brewster Rule
- 6th Amend. Rt 2 Atty Attached?
- Attach @ critical stage / initiation of adversary proc'gs
- Must honor if invoke (Escobedo)
- Police Delib'ly Elicit Incrim'ing Stmt?
- Police S/M
- Incl's trickery
- If both yes, excl. stmt unless govt proves waiver
5th & 14th Amend.
- Miranda Rules
- Safeguarding / Prophylactic Rule
- Dang. in inherently coercive env.
- Level playing field 4 D 4 indiv. dignity / pvcy underlying
- No M Viol's If
- Not use stmt even if custodial interrog.
- Not interrog. even if thrown in jail
- Vol. Stand. Consid. by 14th Before
- Indiv. dignity & D's S/M
- Law enforcement conduct
- Reliability & trustworthiness
- Analysis 4 5th Amend. M Rts
- If It's
- Cop dom'ed setting except home & traffic stop sig'ly deprive
- From rsbl D's perspective
- Vol. encounter w/some rsbly way out, not custody
- Invol. if detained D / forcibly subdued then custody
- Express quest'ing by cops /
- Fn'al equiv. where words / acts by cops rsbly likely 2 elicit
incrim'ing testimonial ans. by looking @ content
- Then go on 2 next step but if either element absent, stmt
admissible as vol.
- Adeq. Warnings Given Per M
- Warnings R
- Rt 2 remain silent
- If not silent then can use stmts against U
- Rt 2 atty (limited scope than 6th b/c only 4 quest'ing)
- If can't afford atty, then appt atty 4 U
- If not given suppress stmt but if did give, then go 2 next
- D Invoked / Waived Rts
- By obj'ly unequivocally asserting rts
- Invocation of rt 2 atty has higher wt. than rt 2 remain silent
- Then no quest'ing (suppress if quest'ed) unless D (Edwards)
- Reinitiated quest's rsbly rel. 2 investig. +
- Waived then stmt's admissible
- Waived then stmt admissible (Burbine & Connelly)
- Under totality of circ's
- Can incl poverty / mental faculty of D
- Govt proves by preponderance of evid. that
- D relinq'ed rts
- Vol'ly so free choice not coercion,
- Knowingly / intelligently so understanding nat. of rts &
conseq's of waiver +
- In absence of police coercion
- Stmt's Allowed Even if M Viol / No M Given
- Pub. Safety Exception (no M given)
- Obj'ly was officer's quest's
- Rsbly prompted by int. in pub. safety: then admit
- Designed solely 2 elicit incrim'ing stmt: then suppress
- Impeach D @ Trial
- Reinitiation after invocation
- Invol'ness: D/P as Final Step
- 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
- Invol Stand.
- Police overreach +
- Totality of circ's
- Phys. / psych. coercion
- Show of force
- Food, sleep, med. depriv.
- Isolation in length of X
- Size of rm, ventilation, temp.
- Number / variety of officers
- D's phys. / mental state
- Ill / injured
- Age / ed.
- Familiarity of crim. justice sys.
- Bottom line stand.: Need 2 shock the conscience 2 viol. D/P
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Ms Haeji Hong
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