Michelle PalaroCJUS 2360Fall 2015

A Foundation for Understanding Constitutional Law

Chapter 10The Fifth Amendment

Obtaining Information Legally

Introduction This is one of the best known Amendments,

thanks to television and the movies Everyone knows about the “right to remain

silent” However the 5th Amendment covers many

other rights that people are not aware of Even though the world revolves around

communication, and electronic advancements continue to defy the imagination, the criminal justice system still focuses on the oldest form of communication: Talking

The Right Against Self-Incriminationand Due Process

The 5th amendment says:o “No person shall be compelled in any

criminal case to be a witness against himself”

5th amendment also states:o “No person shall be deprived of life,

liberty or property, without due process of law”

Malloy v. Hogan (1964)o Made the self-incrimination clause

applicable to the states

Malloy v. Hogan (1964)

Hiibel v. Nevada , 59 P.2d 1201 (2004)

Facts: A stopped motorist refused to provide proper identification on request of the police officer investigating an assault involving a similar vehicle

Issues: Does the Fifth Amendment include the right to refuse to provide identification to the police during a routine law enforcement Terry stop?

Holding: No Rationale: The initial stop was based on

reasonable suspicion, satisfying the 4th Amendment requirements, and the Fifth Amendment prohibits only compelled testimony that is incriminating

http://www.oyez.org/cases/2000-2009/2003/2003_03_5554

Due Process Due process- provides rules and procedures to

ensure fairness to an individual and to prevent arbitrary government actionso The 5th and 14th Amendments constitutionally

guarantee the right of an accused to hear the charges against him or her and to be heard by the court having jurisdiction over the matter

Procedural and substantive due process work to ensure to everyone the fairness of the law under the Constitution

Police actions that are extreme have been found to violate due process

Rochin v. California , 342 U.S. 165 (1952)

Facts: Deputies entered Rochin’s home through an unlocked door and saw him put two capsules into his mouth. The officers took him to the hospital and had his stomach pumped. Two morphine capsules were recovered and used as evidence

Issues: Did the police procedure violate the Fifth Amendment privilege against self-incrimination and the Due Process Clause of the 14th Amendment?

Holding: Yes Rationale: The police violated Rochin's right to due

process of law. Due process was an admittedly vague concept, but it prohibited "conduct that shocks the conscience"

http://en.wikipedia.org/wiki/Rochin_v._California

The 5th Amendment and Confessions

This area of law has been the subject of continued judicial examination

When will a confession be admissible as evidence in court?o Early common law permitted confessions to be

obtained by any manner, including force or threat of force

o The reliability of such admissions is to be questioned

o While the need for interrogations by law enforcement is acknowledged, not all confessions will be admissible in court

Voluntariness of Confessions

The exclusionary rule prohibits use of confessions obtained in violation of a person’s constitutional rights, and those otherwise coerced are inherently unreliable

To demonstrate that a confession was voluntary, many police departments will tape- or video-record interrogations

Brown v. Mississippi , 297 U.S. 278 (1936)

Facts: Two individuals were convicted of murder, the only evidence of which was their own confessions that were procured after violent interrogation including whippings

Issues: Can a confession be used as evidence if extracted after police violence?

Holding: No Rationale: In the first confession case decided by

the Supreme Court, a defendant’s confession, when extracted through police violence, cannot be entered as violence for the process to acquire such an admission violated the due process clause of the Fourteenth Amendment

http://en.wikipedia.org/wiki/Brown_v._Mississippi

Voluntariness of Confessions, cont’d

The Courts have identified two factors in assessing the voluntariness of a confession:1. The police conduct involved2. Conduct sufficient to overcome the will

of the suspect given the characteristics of the accused

Police Conduct What are some conduct that violates due

process?o Threats of violenceo Confinement under shockingly inhumane

conditionso Interrogation after lengthy, unnecessary

delays in obtaining a statement between arrest and presentment before a neutral magistrate

o Continued interrogation of an injured and depressed suspect in a hospital intensive-care unit

o Deprivations of food, drink and sleep

Police Conduct, cont’d What are examples of police action

that do NOT violate due process?o Promises of leniencyo Encouraging a suspect to cooperateo Promises of psychological treatmento Appeal to religious believeso Trickery and deceit

Characteristics of the Accused Factors to be considered in determining

whether a confession was voluntary:o Ageo Educationo Intelligence levelo Mental illnesso Physical condition

If it has not been coerced, then the confession is presumed to have been voluntary

A Standard for Voluntariness There is a totality of circumstances

testo Was the admission truly voluntary?o Were the individual’s constitutional

guarantees protected?o Was the good of the people balanced

with the government’s and the accused's freedoms?

Escobedo v. Illinois , 378 U.S. 478 (1964)

Escobedo v. Illinois , 378 U.S. 478 (1964)

Facts: Escobedo asked for his lawyer. His attorney arrived at police headquarters soon after the petitioner did and was not allowed to speak to his client as the officers said they had not completed questioning

Issues: If a suspect has been taken into police custody and interrogated by police without their request to see an attorney being honored, nor being advised of their right to remain silent, have they been denied effective assistance of counsel under the Sixth Amendment?

Holding: Yes Rationale: When the process shifts from

investigatory to accusatory, the accused must be permitted to consult with his/her lawyer

Miranda v. Arizona (1966) The most well known cases ever decided

concerning law enforcement Most people can recite the requirements

of Miranda The purpose is to let those accused of

crimes known they do have rights and to protect themselves

Many criticize Miranda but it remains the precedent case referred to by courts analyzing confession issues

Miranda v. Arizona (1966) Was a poor 23 year old with a 9th grade

education Arrested in his home for rape and was

taken to the police station where a witness identified him

Within 2 hours, he signed a written confession

He was never informed of his right to consult with an attorney, to have an attorney present during questioning, nor of his right not to be compelled to incriminate himself

Miranda v. Arizona (1966) The legal issue in this case is whether the

police must inform a suspect, who is the subject of custodial interrogation, of his constitutional rights concerning self-incrimination and counsel before questioning

Miranda also changed the analysis of the 5th amendment protection against self-incrimination from a totality of the circumstances for voluntariness to whether those subjected to a custodial interrogation by police were advised of their rights

The Miranda Warning This decision actually directs police officers on what

to say to individuals that are in custody before questioning them

The Constitution requires that I inform you that:o You have the right to remain silento Anything you say can and will be used against you in courto You have the right to talk to a lawyer now and have him

present now or at any time during questioningo If you cannot afford a lawyer, one will be appointed for you

without cost Some officers have a “soft Miranda warning” which is

less harsho This version is permissible as long as all the elements of the

warning are present

When the Miranda Warning Must be Given

Custodial interrogationo Warnings must be given to a suspect

interrogated in police custody when the suspect is not free to leave

When in doubt, the officer should advise the person of their rightso Any interview of one suspected of a crime by

a police officer will have coercive aspect to it which may cause the suspect to be charged with a crime

o Miranda warnings are required only when there has been such restriction on a person’s freedom as to render him “in custody”

Waiving the Rights Waiver

o A purposeful and voluntary giving up of a known right Suspects must know and understand their

constitutional rights to legally waive them Suspects may revoke the waiver at any point in

the interrogation If after hearing an officer read the Miranda

warnings, suspects remain silent, this silence is not a waiver

To waive their rights, they must state orally or in writing:1. They understand their rights2. They will voluntarily answer questions without a lawyer

present

When Miranda Warnings Generally Are Not Required

An exception is when questioning is done by a private security officero Why?o Not bound by the 4th amendmento Only government agents are• However, they will be held accountable for

wrongful acts, including crimes or civil wrongs

The Public Safety Exception An important exception to the Miranda

requirement involves public safety

Allows police to question suspects without first giving the Miranda warning if the information sought sufficiently affects the officer’s and the public’s safety

New York v. Quarles , 467 U.S. 649 (1984)

Facts: After being stopped and frisked, revealing an empty shoulder holster, respondent Benjamin Quarles said “the gun is over there” in response to an officer’s question about its whereabouts. Only then did the officer give the respondent his Miranda warnings

Issues: Was Miranda violated? Holding: No Rationale: If Miranda warnings had deterred the

response to the officer’s question, the result would have been more than the loss of evidence. As long as the gun was concealed in the store, it was a danger to public safety

http://en.wikipedia.org/wiki/New_York_v._Quarles

Fruit of the Poisonous Tree The doctrine would prohibit the use of

secondary evidence in trial that was called directly from primary evidence derived from any legal search and seizure

Unlike Fourth Amendment violations, in which the fruit of the poisonous tree doctrine applies, violations of Miranda do not restrict the use of evidence gleaned from a statement made in the absence of Miranda

Other Rights Guaranteed by the 5th Amendment

Right to a grand jury indictmento The only unincoporated right under the

5th

Prohibition against double jeopardy

Right to receive just compensation when government takes private property

USA PATRIOT Act The Act significantly improves the nation’s

counterterrorism efforts by:o Allowing investigators to use the tools already

available to investigate organized crime and drug trafficking

o Facilitating information sharing and cooperation among government agencies, so they can better “connect the dots”

o Updating the law to reflect new technologies and new threats

o Increasing the penalties for those who commit or support terrorist crimes