Chapter 10 lecture notes, videos, and websites

1.  
Michelle Palaro
CJUS 2360
Fall 2015
Chapter 10
The Fifth Amendment
Obtaining Information
Legally

2.  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

3.  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

5.  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

6.  Due process- provides rules and procedures to ensure
fairness to an individual and to prevent arbitrary
government actions
o 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

7.  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

8.  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

9.  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

10.  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

11.  The Courts have identified two factors in
assessing the voluntariness of a
confession:
1. The police conduct involved
2. Conduct sufficient to overcome the will of the
suspect given the characteristics of the
accused

12.  What are some conduct that violates due
process?
o Threats of violence
o Confinement under shockingly inhumane conditions
o 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

13.  What are examples of police action that
do NOT violate due process?
o Promises of leniency
o Encouraging a suspect to cooperate
o Promises of psychological treatment
o Appeal to religious believes
o Trickery and deceit

14.  Factors to be considered in determining
whether a confession was voluntary:
o Age
o Education
o Intelligence level
o Mental illness
o Physical condition
 If it has not been coerced, then the confession
is presumed to have been voluntary

15.  There is a totality of circumstances test
o 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?

17.  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

18.  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

19.  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

20.  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

21.  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 silent
o Anything you say can and will be used against you in court
o You have the right to talk to a lawyer now and have him present now
or at any time during questioning
o If you cannot afford a lawyer, one will be appointed for you without
cost
 Some officers have a “soft Miranda warning” which is less
harsh
o This version is permissible as long as all the elements of the warning
are present

22.  Custodial interrogation
o 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 rights
o 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”

23.  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 rights
2. They will voluntarily answer questions without a lawyer present

24.  An exception is when questioning is done
by a private security officer
o Why?
o Not bound by the 4th amendment
o Only government agents are
• However, they will be held accountable for
wrongful acts, including crimes or civil wrongs

25.  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

26.  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

27.  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

28.  Right to a grand jury indictment
o The only unincoporated right under the 5th
 Prohibition against double jeopardy
 Right to receive just compensation when
government takes private property

29.  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