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Right Against Self-Incrimination. ACG 6935/4939. Based in the 5th Amendment. Can only be applied if defendant’s statement is testimonial. (not blood samples, fingerprints, etc.) If the defendant’s response might be incriminating.

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based in the 5th amendment
Based in the 5th Amendment
  • Can only be applied if defendant’s statement is testimonial. (not blood samples, fingerprints, etc.)
  • If the defendant’s response might be incriminating.
  • If the testimony could be used against the defendant in a criminal trial.
constitutional basis
Constitutional Basis
  • No person shall be compelled in any criminal case to be a witness against himself.
  • Reliability of the statement.
  • Avoidance of Coercion.
  • Conformance with Adversarial System.
  • Not applicable to non-U.S. Citizens.
the confession and self incrimination
The Confession and Self-Incrimination
  • Confession has to be voluntary.
  • Did the suspect ask for an attorney? (6th Amendment Right to Counsel)
  • Landmark case - Miranda v. Arizona
miranda rights
Miranda Rights
  • Right to remain silent.
  • Anything said can and will be used against defendant.
  • Right to an attorney.
  • If suspect can’t afford one, an attorney will be appointed.
  • Courts ruled that the very nature of police interrogation is coercive.
  • Not mandated by the Constitution.
  • Defendant does not have to be told of the crime being investigated.
custody interrogation
Custody & Interrogation
  • Suspect must feel he/she is not free to leave.
  • Police Station interview vs. McDonalds
  • Agents must begin to ask questions.
  • Miranda always assumed at arrest.
scenario 1
Scenario #1
  • Police arrest a suspect and start to give him Miranda warnings.
  • Before they can finish the warnings, the suspect doesn’t acknowledge the warnings but starts talking and gives a full confession.
  • The defense moves to suppress these statements. Are they successful?
Scenario #
  • Police receive information that a supermarket is being robbed during business hours.
  • Police respond to the scene and see a suspect with an empty shoulder holster.
  • Police order the suspect to stop and he complies.
  • After doing a stop & frisk, police ask the suspect for the whereabouts of the weapon without advising of Miranda.
  • The suspect tells the police where the weapon is.
  • Will this statement be suppressed?
public safety exception
Public Safety Exception
  • Public Safety is paramount to the adherence of Miranda.
  • Questions must be reasonably prompted by public safety issues.
  • Limited in scope.
scenario 2
Scenario #2
  • I.M.A. Fraud gets subpoenaed in a civil case where Fraud is being sued by clients of his investment firm alleging they have been defrauded.
  • Fraud is not aware of any criminal investigation into his business activities.
  • Fraud asserts his 5th Amendment rights at the deposition.
  • Can he be compelled to testify?
threat of prosecution
Threat of Prosecution
  • If the threat exists, suspect does not have to answer questions.
  • If criminal process has been completed, he has no right to be asserted.
  • Can be asserted at any criminal proceeding.
scenario 3
Scenario #3
  • Slick Rapp receives a grand jury subpoena compelling him to produce the following items:
  • Handwriting
  • Fingerprints
  • Blood
  • Lie Detector Test
  • Are these a violation of Rapp’s right against self-incrimination?
  • Bars only compulsory “self-incriminating” testimony.
  • Can apply when testimony would place a “link in the chain of evidence needed to prosecute.”
  • Whereabouts of a fugitive.
scenario 5
Scenario #5
  • Book Keeper is the custodian of records for ABC Corp.
  • Keeper receives a federal grand jury subpoena for ABC records.
  • The grand jury also wants Keeper to sign a consent needed to obtain foreign bank records
  • Keeper tries to assert his 5th Amendment rights. Is he successful?
records foreign issues
Records & Foreign Issues
  • Records are generally non-testimonial
  • No 5th Amendment right in Foreign prosecutions.
  • Compulsory signing of a consent form to retrieve bank records is not testimonial.
Scenario #
  • King Fisher’s accountant receives a subpoena for records. Fisher is under indictment.
  • Fisher gave the documents in question to his attorney prior to the subpoena being issued.
  • The accounting records are incriminating.
  • Fisher files a motion that the turning over of these records would violate his right against self-incrimination.
  • Is he correct?
at trial
At Trial
  • Can prosecutors tell the jury that the defendant refused to cooperate with police?
  • Must a judge tell a jury to draw no inference from whether a suspect testifies or not?
at trial cont
At Trial (Cont.)
  • Who decides whether a defendant will testify?
  • What if the defendant refuses to answer questions on the stand?
  • Can the defendant be impeached with an illegally obtained confession?
voluntariness of a confession
Voluntariness of a Confession
  • Defendant’s personal characteristics.
  • Nature of the detention.
  • Manner of Interrogation.
  • Use of force, threats, promises, or deception.
  • McNabb-Mallory Rule.
  • Requires Agents to bring defendant before the judge as timely as possible.
  • Any statement made after an unreasonable delay is inadmissible.
6th amendment right to counsel
6th Amendment Right to Counsel
  • Different from 5th Amendment Right.
  • Doesn’t attach until formal charges are filed.
  • As soon as 6th amendment right invoked, agents back off.
Scenario #
  • Scum Bag is arrested for cocaine trafficking and thrown in jail.
  • Bag asserts his right to counsel.
  • A cellmate listens to Bag admit his involvement in transporting cocaine and stolen guns.
  • Bag tells police.
  • Police approach Bag the next day and question Bag about the stolen guns only.
  • Bag confesses to the stolen guns.
  • Bag wants these statements suppressed because he asserted his right to counsel.
offense specific
Offense Specific
  • Assert 6th amendment right for each case.
  • Blockburger test requires proof of an additional element that the other crime doesn’t require.
  • As long as Bag initiated conversation with cellmate or if cellmate acted alone, testimony is admissible.
Scenario #
  • Shy Criminal is arrested and read his Miranda Rights.
  • Shy indicates he wants to remain silent.
  • Police immediately stop questioning Criminal.
  • Two hours later, Police approach Criminal, re-read his Miranda Rights and Criminal confesses to the crime.
  • Will this confession be suppressed?
cooling off period
Cooling Off Period
  • Courts generally recognize as two hours.
  • Suspect can be re-approached and reread Miranda.
  • After invocation of counsel right, suspect must initiate new police contact.
Scenario #
  • Lex Luthor is arrested and being interrogated by officers.
  • Luthor makes the statement “Maybe I should get a lawyer.”
  • Luthor then confesses to the crime in question.Will this confession be suppressed?
  • Has to imply or invoke the privileges.
  • Simply saying he/she is thinking about the certain privilege is not enough.
  • Don’t give advice to them.
  • Document & Document.
5th Amendment

Is it testimonial in nature?

Miranda applies when there is both custody and interrogation.

Confession must be deemed voluntary.

Also has a right to counsel.

6th Amendment

Must have formal charges.

Offense specific

Once this right is invoked, any new contact must be initiated by defendant.