I Plead the Fifth

1. �I Plead the Fifth� Everything You Need to Know About Self-incrimination Pd. 4 Government Garrett, Andrew, Eric, Megan, and Casey

2. Definition: The making of statements that might expose you to criminal prosecution, either now or in the future. The 5th Amendment of the U.S. Constitution prohibits the government from forcing you to provide evidence, as in answering questions that would or might lead to your prosecution for a crime.

3. Ernesto Miranda V. Arizona Confession without Rights, start of Miranda v. Arizona Does the police practice of interrogating individuals without their right to counsel and their protection against self-incrimination Fifth Amendment Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards �effective to secure the privilege against self-incrimination�

5. How It Works Can a Criminal Defendant be Forced to Testify at Trial? At trial, the Fifth Amendment gives a criminal defendant the right not to testify. Meaning the prosecutor, the judge, and even the defendant�s lawyer cannot force the defendant to take the witness stand at trial, if he or she does not want to do so Does the Privileges Apply to Fingerprints and Blood Tests? It does not apply when a defendant is fingerprinted, or made to provide a DNA Sample in connection with a criminal case.

6. Cont. Who Can Claim the Fifth Amendment Privilege at Trial? At a criminal trial, it is not only the defendant who enjoys the Fifth. Witnesses who are asked to testify can refuse to answer certain questions by asserting their Fifth Amendment right The witness may be forced to testify, but can still invoke the Fifth Amendment right.

7. Right or a Privilege? �nemo tenetur seipsum accusare� No man is bound to accuse himself. Over the years, interpretation of this clause has resulted in expansion and contraction of this supposed right, but given that the Supreme Court has not yet articulated its real meaning, it is perhaps best seen as a privilege, one that is very broad. Privilege against self-incrimination is a personal one. It apples to individual human beings only. (a corporation cannot plead the fifth to keep quiet.) The Amendment also only applies to criminal cases. A witness cannot keep silent or withhold information in civil proceedings which are not criminal in nature. Thirdly, It only applies in cases where the phenomenon of �compulsion� is present. In order for something to be incriminating, it must not just reveal criminal activity, but produce the real likelihood or risk of imprisonment. Finally, the privilege preserves some interesting features of the American adversarial system. When a defendant refuses to testify in their own trial, neither the prosecutor nor the judge can make any adverse comments about it, unless the defense opens the door to it by commenting upon it in closing arguments. There is a balancing test with no name that helps decipher self- incrimination.

9. Cont. The right of the government to compel citizens to furnish evidence and/or to select who will and who will not be prosecuted. The right of all citizens to NOT be compelled to furnish evidence against themselves or on what they are implicated in by threat of government sanction.

10. Things that Do Not Carry A Self-Incrimination Protection The use of one�s body to incriminate one�s self (Appearance Evidence) Invasion of one�s body to obtain evidence (Bodily Evidence) View of private parts (Strip Searches and Body Cavity Searches) Appearance evidence has zero protection by the Amendment. Bodily Evidence triggers the Balancing test, right of government to know must be balanced with the right of individual privacy

11. Cont. Body Cavity Searches involve the invasiveness standard Two important cases involve Schmerber v. California and Winston v. Lee The court ruled in favor of Schmerber in drawing a blood sample, but ruled against Winston that surgery was to invasive.

12. Limited Court Case Chavez v. Martinez, 123 S. Ct. 1994 (May 27, 2003) The U.S. Supreme Court decided that a police officer's failure to give Miranda warnings, coupled with coercive questioning of a defendant, did not violate the defendant's privilege against self-incrimination under the Fifth Amendment. The Court stated that the privilege is not violated until the government tries to use the offending statement against a defendant in a criminal case. However, the Court did not decide whether the officer's actions in this case violated the due process clause of the Fourteenth Amendment. Martinez was questioned by Sergeant Chavez while in an emergency room, suffering from gunshot wounds inflicted by another police officer. Martinez was in severe pain and believed he was about to die when he admitted using heroin and stealing a police officer's gun. Chavez never advised Martinez of his Miranda rights. Martinez was never charged with any crime. Martinez later filed a Title 42, Section 1983, U.S. Code lawsuit against Chavez for violating his Fifth Amendment privilege against self-incrimination and his Fourteenth Amendment substantive due process right to be free from coercive questioning. The district court and the U.S. Circuit Court of Appeals for the Ninth Circuit held that Chavez was not entitled to qualified immunity because he obtained the statements coercively. The fact that the government never tried to use the statements in a criminal trial was irrelevant to these courts. The Supreme Court reversed.

13. Cont. The Supreme Court held that compulsive questioning alone, unrelated to a criminal case, does not violate the Fifth Amendment self-incrimination clause. The phrase "criminal case" in the self-incrimination clause, at the very least requires initiation of legal proceedings and does not encompass the entire criminal investigatory process, including police interrogations. Statements compelled by police interrogation may not be used against a defendant in a criminal case. Martinez was never made to be a "witness" against himself because his statements never were admitted as testimony against him in a criminal case. The Court also concluded that Chavez's failure to read Miranda warnings to Martinez did not violate Martinez's constitutional rights. The majority agreed that a simple Miranda violation was not a violation of a "core" Fifth Amendment right and, therefore, could not support a Section 1983 civil action, requiring an actual violation of a constitutional right. The Court did not resolve the question of whether or not Chavez's questioning violated Martinez's substantive due process rights under the Fourteenth Amendment. That issue was remanded to the Ninth Circuit for additional proceedings. In an opinion dated July 30, 2003, the Ninth Circuit ruled that Chavez's coercive interrogation of Martinez violated his clearly established due process rights under the Fourteenth Amendment.

14. Bibliography http://faculty.ncwc.edu/toconnor