Right Against Self-Incrimination

ACG 6935/4939

Based in the 5th Amendment

• Can only be applied if defendant’s statement is testimonial. (not blood samples, fingerprints, etc.)

• If the defendant’s response might be incriminating.

• If the testimony could be used against the defendant in a criminal trial.

Constitutional Basis

• No person shall be compelled in any criminal case to be a witness against himself.

• Reliability of the statement.

• Avoidance of Coercion.

• Conformance with Adversarial System.

• Not applicable to non-U.S. Citizens.

The Confession and Self-Incrimination

• Confession has to be voluntary.

• Did the suspect ask for an attorney? (6th Amendment Right to Counsel)

• Landmark case - Miranda v. Arizona

Miranda Rights

• Right to remain silent.• Anything said can and

will be used against defendant.

• Right to an attorney.• If suspect can’t afford

one, an attorney will be appointed.

Miranda

• Courts ruled that the very nature of police interrogation is coercive.

• Not mandated by the Constitution.

• Defendant does not have to be told of the crime being investigated.

When Does Miranda Apply?

Custody & Interrogation

• Suspect must feel he/she is not free to leave.

• Police Station interview vs. McDonalds

• Agents must begin to ask questions.

• Miranda always assumed at arrest.

Scenario #1

• Police arrest a suspect and start to give him Miranda warnings.

• Before they can finish the warnings, the suspect doesn’t acknowledge the warnings but starts talking and gives a full confession.

• The defense moves to suppress these statements. Are they successful?

Scenario #

• Police receive information that a supermarket is being robbed during business hours.

• Police respond to the scene and see a suspect with an empty shoulder holster.

• Police order the suspect to stop and he complies.• After doing a stop & frisk, police ask the suspect for the

whereabouts of the weapon without advising of Miranda.• The suspect tells the police where the weapon is.• Will this statement be suppressed?

Public Safety Exception

• Public Safety is paramount to the adherence of Miranda.

• Questions must be reasonably prompted by public safety issues.

• Limited in scope.

Scenario #2

• I.M.A. Fraud gets subpoenaed in a civil case where Fraud is being sued by clients of his investment firm alleging they have been defrauded.

• Fraud is not aware of any criminal investigation into his business activities.

• Fraud asserts his 5th Amendment rights at the deposition.

• Can he be compelled to testify?

Threat of Prosecution

• If the threat exists, suspect does not have to answer questions.

• If criminal process has been completed, he has no right to be asserted.

• Can be asserted at any criminal proceeding.

Scenario #3

• Slick Rapp receives a grand jury subpoena compelling him to produce the following items:

• Handwriting

• Fingerprints

• Blood

• Lie Detector Test

• Are these a violation of Rapp’s right against self-incrimination?

FBI Polygraph Test

Scope

• Bars only compulsory “self-incriminating” testimony.

• Can apply when testimony would place a “link in the chain of evidence needed to prosecute.”

• Whereabouts of a fugitive.

Scenario #5

• Book Keeper is the custodian of records for ABC Corp.

• Keeper receives a federal grand jury subpoena for ABC records.

• The grand jury also wants Keeper to sign a consent needed to obtain foreign bank records

• Keeper tries to assert his 5th Amendment rights. Is he successful?

Records & Foreign Issues

• Records are generally non-testimonial

• No 5th Amendment right in Foreign prosecutions.

• Compulsory signing of a consent form to retrieve bank records is not testimonial.

Scenario #

• King Fisher’s accountant receives a subpoena for records. Fisher is under indictment.

• Fisher gave the documents in question to his attorney prior to the subpoena being issued.

• The accounting records are incriminating.

• Fisher files a motion that the turning over of these records would violate his right against self-incrimination.

• Is he correct?

At Trial

• Can prosecutors tell the jury that the defendant refused to cooperate with police?

• Must a judge tell a jury to draw no inference from whether a suspect testifies or not?

At Trial (Cont.)

• Who decides whether a defendant will testify?

• What if the defendant refuses to answer questions on the stand?

• Can the defendant be impeached with an illegally obtained confession?

Voluntariness of a Confession

• Defendant’s personal characteristics.

• Nature of the detention.

• Manner of Interrogation.

• Use of force, threats, promises, or deception.

Timeliness

• McNabb-Mallory Rule.

• Requires Agents to bring defendant before the judge as timely as possible.

• Any statement made after an unreasonable delay is inadmissible.

6th Amendment Right to Counsel

• Different from 5th Amendment Right.

• Doesn’t attach until formal charges are filed.

• As soon as 6th amendment right invoked, agents back off.

Scenario #

• Scum Bag is arrested for cocaine trafficking and thrown in jail.• Bag asserts his right to counsel.• A cellmate listens to Bag admit his involvement in

transporting cocaine and stolen guns.• Bag tells police.• Police approach Bag the next day and question Bag about the

stolen guns only.• Bag confesses to the stolen guns.• Bag wants these statements suppressed because he asserted his

right to counsel.

Offense Specific

• Assert 6th amendment right for each case.

• Blockburger test requires proof of an additional element that the other crime doesn’t require.

• As long as Bag initiated conversation with cellmate or if cellmate acted alone, testimony is admissible.

Scenario #

• Shy Criminal is arrested and read his Miranda Rights.

• Shy indicates he wants to remain silent.

• Police immediately stop questioning Criminal.

• Two hours later, Police approach Criminal, re-read his Miranda Rights and Criminal confesses to the crime.

• Will this confession be suppressed?

Cooling Off Period

• Courts generally recognize as two hours.

• Suspect can be re-approached and reread Miranda.

• After invocation of counsel right, suspect must initiate new police contact.

Scenario #

• Lex Luthor is arrested and being interrogated by officers.

• Luthor makes the statement “Maybe I should get a lawyer.”

• Luthor then confesses to the crime in question.Will this confession be suppressed?

Ambiguity

• Has to imply or invoke the privileges.

• Simply saying he/she is thinking about the certain privilege is not enough.

• Don’t give advice to them.

• Document & Document.

Review

• 5th Amendment• Is it testimonial in

nature?• Miranda applies when

there is both custody and interrogation.

• Confession must be deemed voluntary.

• Also has a right to counsel.

• 6th Amendment• Must have formal

charges.• Offense specific• Once this right is

invoked, any new contact must be initiated by defendant.

• Document

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