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Ch11
- 1. THE 5TH AMENDMENT: DUEPROCESS AND OBTAINING INFORMATION LEGALLY Chapter 11
- 2. Introduction This is oneof 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
- 3. Introduction Even though theworld revolves around communication, and electronic advancements continue to defy the imagination, the government still uses the oldest form of communication: Talking What the government can do with this information depends on Who acquired the information How was it obtained This chapter introduces the different means by which the government acquires information and
- 4. The Right againstSelfIncrimination The 5th amendment says: “No person shall be compelled in any criminal case to be a witness against himself” Hiibe l v. N va d a (2004) e Refusing to provide proper identification upon request from a government agent is not a denial of the 5th amendment right against selfincrimination
- 5. Due Process ofLaw 5th amendment also states “No person shall be deprived of life, liberty or property, without due process of law” M llo y v. Ho g a n (1964) a Made the due process clause applicable to the states
- 6. Due Process ofLaw Due process- provides rules and procedures to ensure fairness to an individual and to prevent arbitrary government actions The 5th and 14th Amendments constitutionally guaranteed 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
- 7. Due Process ofLaw Procedural due process constitutionally guaranteed rights of fairness in how the law is carried out or applied Comes into play whenever the government seeks to interfere with a person’s liberty or a property interest During the 50s and 60s, “due process revolution,” the public demanded that government be held accountable and that the rights under the Constitution be applied equally to all
- 8. Due Process ofLaw Police actions that would shock the conscience were found to violate due process Ro c hin v. Ca lifo rnia (1952) Three deputies entered Rochin’s home through an unlocked door and saw Rochin putting 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
- 9. Due Process ofLaw Another found violation of the 5th amendment were laws lacking due process for juveniles I re G a ult (1967) n 15 yr. old on probation was taken into custody During his hearing the next day, a general allegation of “delinquency” was made with no specific facts stated The witness was not present, no one was sworn in, no attorney was present and no record was made of the proceeding
- 10. Due Process ofLaw I re G a ult (1967) n At the 2nd hearing with the same circumstances, the judge sentenced the boy to a state school until the age of 21 A six year sentence for which an adult would receive a fine Supreme Court overruled this conviction on the grounds that Gault was deprived of his due process rights
- 11. Due Process ofLaw Substantive due process Constitutional requirement that laws themselves be fair Laws that unjustly limit a person’s freedom or property rights will be found to violate the right of due process
- 12. The 5th Amendmentand Confessions This area of law has been the subject of continued judicial examination When will a confession be admissible as evidence in court? Early common law permitted confessions to be obtained by any manner, including force or threat of force The reliability of such admissions is to be questioned While the need for interrogations by law enforcement is acknowledge, not all confessions
- 13. Voluntariness of Confessions Theexclusionary 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 tapeor video record interrogations
- 14. Voluntariness of Confessions Brown v. M s is s ip p i (1936) is First confession case decided by the Supreme Court The Court ruled that confessions obtained through brutality and torture by law enforcement officials are violations of due process rights
- 15. Voluntariness of Confessions Fikes v. A ba m a (1957) la Supreme Court summarized the standard of that time as “whether the totality of the circumstances that proceeded the confession deprived the defendant of his power of resistance” This standard was termed the d ue p ro c e s s vo lunta rine s s te s t Just as consent for an officer to search must be given freely, suspects must make any admissions voluntarily
- 16. Voluntariness of Confessions TheCourts have identified two factors in assessing the voluntariness of a confession: 1. 2. The police conduct involved The characteristics of the accused
- 17. Police Conduct Police conductwill be considered coercive if it has the effect of overbearing one’s will Ro g e rs v. Ric hm o nd (1961) Involuntary confessions are excluded not because such confessions are unlikely to be true, but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law
- 18. Police Conduct What aresome conduct that violates due process? Threats of violence Confinement under shockingly inhumane conditions Interrogation after lengthy, unnecessary delays in obtaining a statement between arrest and presentment before a neutral magistrate Continued interrogation of an injured and depressed suspect in a hospital intensive-care unit
- 19. Police Conduct What areexamples of police action that do NOT violate due process? Promises of leniency Encouraging a suspect to cooperate Promises of psychological treatment Appeal to religious believes Trickery and deceit
- 20. Police Conduct A ona v. Fulm ina nte (1991) riz Established cases involving the admissibility of involuntary confessions could apply the harmless error doctrine Involves the admissibility of involuntary confessions, if no harm resulted, the confession should be admissible While in prison for a crime he was suspected of having committed murder Another inmate offered him protection to the defendant if he would tell him the truth about the murder
- 21. Police Conduct A ona v. Fulm ina nte riz The inmate later became a witness and disclosed the defendant’s confession Court ruled that the confession was coerced and involuntary Because it was the key factor in his conviction, the error was not harmless and the conviction was reversed
- 22. Characteristics of theAccused Factors such as the defendant’s: Intelligence level Mental illness education Age 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
- 23. A Standard forVoluntariness There is a totality of circumstances test Was the admission truly voluntary? Were the individual’s constitutional guarantees protected? Was the good of the people balanced with the government’s and the accused's freedoms?
- 24. Standard for Voluntariness Esc o be d o v. I is (1964) llino When the process shifts from investigatory to accusatory When its focus is on the accused and its purpose is to elicit a confession The accused must be permitted to consult with his lawyer
- 25. False Confessions Research onfalse confessions has produced mixed results Some say they are common while others say they are rare Some research suggests that the risk of false confessions is higher among the mentally impaired and juveniles
- 26. False Confessions Three types Voluntaryconfessions People claim responsibility for crimes they did not commit without prompting from police Compliant confessions The suspect will confess to escape a stressful situation, to avoid punishment or to gain a promised or implied reward Internalized false confessions Innocent but vulnerable suspects who are exposed to highly suggestive interrogation techniques They come to confess and believe they committed the
- 27. M nd av. A o na (1966) ira riz 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
- 28. M nd av. A o na (1966) ira riz 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
- 29. M nd av. A o na (1966) ira riz 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 selfincrimination and counsel before questioning Miranda also changed the analysis of the 5th amendment protection against selfincrimination from a totality of the circumstances for voluntariness to whether those subjected to a custodial interrogation by police were advised of their rights
- 30. The Miranda Warning Thisdecision actually directs police officers what to say to individuals that are in custody, before questioning them The Constitution requires that I inform you that: You have the right to remain silent Anything you say can and will be used against you in court You have the right to talk to a lawyer now and have him present now or at any time during questioning If you cannot afford a lawyer, one will be appointed for you without cost
- 31. The Miranda Warning Duckwo rth v. Ea g a n (1989) The Miranda warning does not have to be given word for word Some officers have a “soft Miranda warning” which is less harsh This version is permissible as long as all the elements of the warning are present
- 32. Premature Miranda Warnings “Youare under arrest” and “You have the right to remain silent” should NOT often be used together Mirandizing too soon can be a mistake They should only be given just prior to an apparent custodial police interrogation – not sooner
- 33. When the MirandaWarning Must be Given O re g o n v. M thia s o n (1977) a 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 Miranda warnings are required only when there has been such restriction on a person’s freedom as to render him “in custody”
- 34. When the MirandaWarning Must Be Given Custodial interrogation 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
- 35. Custody When is aperson in custody? 1. 2. Has the person been told by police that they are under arrest? Has the person been deprived of freedom in a significant way so that they do not feel reasonably free to leave the situation, based on the totality of the circumstances?
- 36. Suspect Under Arrest Whensome one is under arrest and in custody of the police, they must be read the Miranda warnings if they are to be questioned Pe nns y lva nia v. M uniz (1990) Police may ask routine questions of individuals suspected of driving under the influence of alcohol or drugs And ask them to perform certain tests without giving them the Miranda warning
- 37. Suspect at thePolice Station If the police take someone to the station or they tell a suspect to meet them there for questioning Due to the atmosphere, Miranda is required However, if the suspect voluntarily comes to the station, no warning is needed
- 38. Suspect at thePolice Station Questioning someone in a police car is usually a custodial situation Especially if they cannot get out of the car or will not be let out if they ask If someone flags down a police car and makes a voluntary confession of a crime they just committed No Miranda warning is required
- 39. Suspects Is inCustody for Another Crime Because the suspect is already in custody, Miranda is required before any questioning begins What the person is in custody for does not matter
- 40. Other Factors Indicatinga Custodial Situation Pe o p le v. Shive rs (1967) If a police officer holds a gun on a person, that person is in custody and not free to leave If the person also has a gun, they would unlikely be in custody
- 41. Interrogation Must be presentto trigger Miranda Usually thought of as the formal, systemic, often intensive questioning by law enforcement of a person suspected of criminal activity Also the functional equivalent of express questioning Any words or actions by the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect
- 42. Waiving the Rights W aiver Apurposeful and voluntary giving up of a known right Suspects must know and understand their constitutional rights to legally waive them If after hearing an officer read the Miranda warnings, suspects remain silent, this silence is not a waiver
- 43. Waiving the Rights Towaive their rights, they must state orally or in writing 1. 2. They understand their rights They will voluntarily answer questions without a lawyer present Suspects may revoke the waiver at any point in the interrogation
- 44. Right to RemainSilent O re g o n v. Els ta d (1985) If a police officer obtained a voluntary admission from a suspect without first being advised of the right to remain silent, a confession made after the Miranda warning is given will be admissible Co lo ra d o v. Sp ring (1987) A waiver of Miranda rights is valid, even though the suspect thought the questioning was going to be about a minor crime
- 45. Right to Counsel Aftera defendant invokes the right to counsel, police may not interrogate him If the suspect’s statement is not an unambiguous or equivocal request for counsel, the officers have no obligation to stop questioning him When can questioning continue? “I just don’t think that I should say anything.” “I don’t got nothing to say.” “Could I call my lawyer?”
- 46. Beachheading or “Question First” Beachheading Theunconstitutional approach of purposely withholding the Miranda warnings until after a confession is obtained and then giving Miranda to re-ask the question This has been found to be improper by the Supreme Court
- 47. Miranda Survives aChallenge Dic ke rs o n v. Unite d Sta te s (2000) Dickerson was indicted for bank robbery using a firearm He moved to suppress his statement to the FBI based on their not advising him of his rights per Miranda before being interrogated The Omnibus Crime Control and Safe Streets Act of 1968 stated that the admissibility of statements should turn only on whether they were voluntarily made and not on whether the Miranda had been given
- 48. Miranda Survives aChallenge Dic ke rs o n v. Unite d Sta te s (2000) Case has two major issues: 1. 2. Whether Miranda would remain in effect when a federal statute did not require it Whether Congress could enact a law contrary to that which the Supreme Court has declared to be the constitutional requirement The case was upheld by a 7 to 2 vote a suspect’s confession had always been inadmissible if it had been the result of coercion, or otherwise given involuntarily
- 49. Miranda Issues Continue Wewill continue to see cases that deal with Miranda and how they are administered Cha ve z v. M rtine z (2003) a The Supreme Court ruled that violating Miranda does not subject law enforcement officers to civil liability if statements are not used against the plaintiff in court
- 50. When Miranda WarningsGenerally Are Not Required When an officers asks no questions During general on the scene questioning When a statement is volunteered When asking a suspect routine identification questions Questioning witnesses who are not suspects Stop-and-frisk cases When asking routine questions of drunken-driving suspects and videotaping the proceedings During lineups, showups or photo identifications When the statement is made to a private person When a suspect appears before a grand jury When there is a threat to public safety When an undercover officer poses as an inmate and asks
- 51. When Miranda WarningsGenerally Are Not Required Another exception is when questioning is done by a private security officer Why? Not bound by the 4th amendment. Only government agents are However, acts they will be held accountable for wrongful Including crimes or civil wrongs
- 52. The Public SafetyException An important exception to the Miranda requirement involves public safety N w Yo rk v. Qua rle s (1984) e A young woman stopped police and told them she had been raped, she described the rapist and his location and that he was armed with a gun Officers located suspect and the suspect ran When the suspect was apprehended and frisked, he was wearing an empty shoulder holster When the officer asked where the gun was, the suspect told him that “the gun was over there”
- 53. The Public SafetyException N w Yo rk v. Qua rle s (1984) e At trial, the statement “the gun is over there” and the discovery of the gun were ruled inadmissible The U.S. Supreme Court ruled that 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
- 54. The Public SafetyException Public Safety Exception 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
- 55. The Interplay betweenthe 4th and 5th Amendments Another important consideration in whether information obtained will be admitted in court is whether it violates a person’s 4th Amendment right to a reasonable expectation of privacy Often times different amendments interact and affect one another Statements, including confessions, will not be admissible in court if they were obtained while a person’s 4th Amendment right to a reasonable expectation of privacy was being violated Sometimes this involves someone conversing with an informant
- 56. Fifth Amendment Miranda Implicationsof Using Informants An informant is a person who gives government agencies information about criminal activity Officers who use informants to establish probable cause must follow specific legal procedures established by case law
- 57. Entrapment The act ofgovernment officials or agents (usually police) inducing a person to commit a crime that the person would not have otherwise committed If a private person not connected with law enforcement induces someone to commit a crime, no defense of entrapment can be used
- 58. Entrapment Whether entrapment existsmay be determined by subject analysis Was the suspect predisposed to commit the crime, or were they an unwary innocent party? Was the innocent person induced by the police to commit a crime they never would have otherwise?
- 59. Entrapment Ja c obs o n v. Unite d Sta te s (1992) The leading case in entrapment The government did so much to “implant” in his mind the desire to commit the crime “Where the government has induced an individual to break the law and the defense of entrapment is an issue, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the criminal act prior to first being approached by government agents”
- 60. Other Rights Guaranteedby the 5th Amendment Right to a grand jury indictment Prohibition against double jeopardy Right to receive just compensation when government takes private property
- 61. The Right toa Grand Jury Grand jury A group of citizens that determine whether sufficient evidence exists to send an accused to trial The outcome of a grand jury is to indict or not Indictment A formal accusation of a defendant, usually by a grand jury, that send the defendant on to trial for prosecution
- 62. The Right toa Grand Jury
- 63. Double Jeopardy Has beenincorporated in the 14th Amendment to apply to the states Double jeopardy is a prohibition against the government from trying someone twice for the same offense Double jeopardy requires all three elements: Successive prosecution, same offense, same jurisdiction
- 64. Double Jeopardy Sa ttaz ha n v. Pe nns y lva nia (2003) Held that there is no double jeopardy when one is sentenced to death at a retrial after receiving a life sentence at the original trial when the jury deadlock during the sentencing phase Unite d Sta te s v. La ra (2004) The Court held that you could be tried again in federal court because the courts represented two different jurisdictions
- 65. Just Compensation “Is therequirement that property owners be paid fair market value by the government when government takes their property” Sometimes the government needs to take property for the public good When the property is taken and to be used for something different to the point that the owners are no longer able to use it as they wish, fair compensation is required.
- 66. 5th Amendment andCorrections The 5th Amendment does not often arise in prisoners’ rights cases It may apply to inmates being questioned about crimes they are not serving time for and those inmates involved in disciplinary proceedings I is v. Pe rkins (1990) llino Held that undercover police agents do not have to administer Miranda warnings to incarcerated suspects before soliciting incriminating information from them Miranda did not apply because there was no custodial interrogation
- 67. 5th Amendment andCorrections Inmates who commit disciplinary infractions may appear before a disciplinary board They can be punished and find themselves facing criminal prosecution for the same offense The courts have consistently ruled that this circumstance does not constitute double jeopardy
- 68. USA PATRIOT Act Unitingand Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
- 69. USA PATRIOT Act TheAct gives federal officials greater authority to track and intercept communications for law enforcement and foreign intelligence gathering Improves the nation’s counterterrorism efforts It further closes our borders to foreign terrorists and allows us to detain and remove terrorists already in our country
- 70. USA PATRIOT Act TheAct significantly improves the nation’s counterterrorism efforts by: Allowing investigators to use the tools already available to investigate organized crime and drug trafficking Facilitating information sharing and cooperation among government agencies, so they can better “connect the dots” Updating the law to reflect new technologies and new threats Increasing the penalties for those who commit or support terrorist crimes
- 71. Facilitating Information Sharingand Cooperation among Government Agencies Prosecutors can share evidence obtained through grand juries with intelligence officials Intelligence information can now be shared more easily with federal prosecutors
- 72. Updating the Lawto Reflect New Technologies and New Threats The United States has updated technology to fight the new digital-age battles Law enforcement can use the PATRIOT ACT to obtain a search warrant anywhere a terrorist-related activity occurred
- 73. Increasing Penalties forThose Who Commit or Support Terrorist Crimes Creates a new offense for knowingly harboring people who have committed or are about to commit a variety of terrorist offenses Enhances the inadequate maximum penalties for various crimes likely to be committed by terrorists Enhances a number of conspiracy penalties It eliminates the statute of limitations for certain terrorism crimes
- 74. The Renewal ofthe USA PATRIOT Act The renewal of the PATRIOT Act did not occur easily There was a year of contested debate The law was resigned Proponents assert the law will keep America safe from threats Opponents fear the real threat is from an unbridled government armed with this law
- 75. The USA PatriotAct and a Changing Society This Act provides an example of: How U.S. law never remains static The legal system’s ability to alter its course in response to change An ability to enact change when many criticize how impossible change is to legislate The ability of legislators to come together in a nonpartisan manner when required How legislation must be renewed