The Fifth Amendment: Obtaining Information Legally

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© 2015 Cengage Learning
Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver
Chapter 10
The Fifth
Amendment
Obtaining
Information Legally

2. © 2015 Cengage Learning
 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. © 2015 Cengage Learning
 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 due process clause applicable to the
states.

4. © 2015 Cengage Learning
 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.

5. © 2015 Cengage Learning
 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.

6. © 2015 Cengage Learning
 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."

7. © 2015 Cengage Learning
 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
acknowledge, not all confessions will be admissible in
court.

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 The exclusionary rule prohibits use of confessions
obtained in violation of a person’s constitutional
rights and those otherwise coerced and are
inherently unreliable.
 To demonstrate that a confession was voluntary,
many police departments will tape- or video record
interrogations.

9. © 2015 Cengage Learning
 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.

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 The Courts have identified two factors in
assessing the voluntariness of a confession:
1. The police conduct involved.
2. The characteristics of the accused.

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 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

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 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

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

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 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?

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 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.

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 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.

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 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.
 In 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 his right not to be compelled to
incriminate himself.

18. © 2015 Cengage Learning
 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.

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 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.

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 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.”

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 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.

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 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.

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 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

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 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.

25. © 2015 Cengage Learning
 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.

26. © 2015 Cengage Learning
 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.

27. © 2015 Cengage Learning
 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.