2. Introduction
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
3. Introduction
Even though the world 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 against SelfIncrimination
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 of Law
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 of Law
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 of Law
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 of Law
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 of Law
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 of Law
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 of Law
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 Amendment and
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
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 tapeor video record interrogations
14. Voluntariness of Confessions
Bro wn 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
Fike s 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
The Courts 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 conduct will 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 are some 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 are examples 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 o na 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 o na 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 the Accused
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 for Voluntariness
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
Es c 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 on false 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
Voluntary confessions
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 a v. 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 a v. 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 a v. 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
This decision 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
Duc kwo 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
“You are 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 Miranda Warning 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 Miranda Warning 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 a person 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
When some 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 the Police 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 the Police 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 in Custody 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 Indicating a 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 present to 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
A purposeful 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
To waive 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 Remain Silent
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
After a 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
The unconstitutional 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 a Challenge
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 a Challenge
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
We will 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 Warnings Generally 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 Warnings Generally 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 Safety Exception
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 Safety Exception
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 Safety Exception
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 between the 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
Implications of 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 of government 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 exists may 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 o bs 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 Guaranteed by 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 to a 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
63. Double Jeopardy
Has been incorporated 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 tta z 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 the requirement 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 and Corrections
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 and Corrections
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
69. USA PATRIOT Act
The Act 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
The Act 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 Sharing and
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 Law to 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 for Those
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 of the 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 Patriot Act 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
