THE FIFTH AMENDMENT

Constitutional Law

The Right Against Self-Incrimination and Due Process

 The 5th amendment says:  “No person shall be compelled in any criminal case to be a witness against himself.”

 “No person shall be deprived of life, liberty or property, without due process of law.”

 Malloy v. Hogan (1964)  Made the due process clause applicable to the states.

Hiibel v. Nevada , 59 P.2d 1201 (2004)

 Facts: Larry Hiibel was arrested and convicted in Nevada state court for failing to identify himself to a police officer who was investigating an assault.

 Issue: Did Hiibel’s arrest and conviction for not telling a police officer his name violate his Fifth Amendment right not to incriminate himself and his Fourth Amendment right to be free from an unreasonable search?

 Holding: No.

 Rationale: The officer’s investigation did not violate the Fifth Amendment because Hiibel never argued that telling the officer his name would incriminate him of any crime.

Hiibel v. Nevada , 59 P.2d 1201 (2004)

 Facts: Larry Hiibel was arrested and convicted in Nevada state court for failing to identify himself to a police officer who was investigating an assault.

 Issue: Did Hiibel’s arrest and conviction for not telling a police officer his name violate his Fifth Amendment right not to incriminate himself and his Fourth Amendment right to be free from an unreasonable search?

 Holding: No.

 Rationale: The officer’s investigation did not violate the Fifth Amendment because Hiibel never argued that telling the officer his name would incriminate him of any crime.

Due Process

 Provides rules and procedures to ensure fairness to an individual and to prevent arbitrary government actions.

 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.

Rochin v. California , 342 U.S. 165 (1952)

 Facts: Rochin swallowed drug capsules to dispose of evidence. The police took him to a hospital where a doctor was instructed by the police officers to administer an emetic by forcibly passing a tube into Rochin’s stomach. He vomited the capsules and was convicted on the basis of the evidence produced from his vomit.

 Issues: Did the police forcing Rochin to vomit violate the Fifth Amendment privilege against self-incrimination and the Due Process Clause of the 14th Amendment?

 Holding: Yes.

 Rationale: Due process was an admittedly vague concept, but it prohibited “conduct that shocks the conscience.”

The 5th Amendment and Confessions

 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.

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 tape- or video record interrogations.

Brown v. Mississippi , 297 U.S. 278 (1936)

 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.

Voluntariness of Confessions

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

 If it has not been coerced, then the confession is presumed to have been voluntary.

Police Conduct

 What are some conduct that violates due process?  Threats of violence

 Interrogation after lengthy, unnecessary delays in obtaining a statement between arrest and presentment before a neutral magistrate

 Deprivations of food, drink and sleep

 What are examples of police action that do NOT violate due process?  Promises of leniency

 Appeal to religious beliefs

 Trickery and deceit

Characteristics of the Accused

 Factors such as the defendant’s:  Age

 Education

 Intelligence level

 Mental illness

 Physical condition

 Will all be considered in determining whether a confession was voluntary.

A Standard for Voluntariness

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?

Escobedo v. Illinois , 378 U.S. 478 (1964)

 Facts: Over several hours, the police refused Escobedo’s repeated requests to see his lawyer. Escobedo’s lawyer sought unsuccessfully to consult with his client. Escobedo subsequently confessed to murder.

 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 Helpance 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.

Miranda v. Arizona (1966)

 Miranda was a poor 23-year-old with a 9th grade education who signed a written confession.

 Legal issue: Does a defendant need to be informed of rights?

 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.

The Miranda Warning

 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:  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.

When the Miranda Warning Must be Given

Custodial interrogation

When in doubt, the officer should advise the person of their rights.  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.

Waiving the Rights

 Waiver  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.

 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.

The Public Safety Exception

 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

New York v. Quarles , 467 U.S. 649 (1984)

 Facts: After receiving the description of Quarles, an alleged assailant, a police officer entered a supermarket, spotted him, and ordered him to stop. Quarles stopped and was frisked by the officer. Upon detecting an empty shoulder holster, the officer asked Quarles where his gun was. Quarles responded. The officer then formally arrested Quarles and read him his Miranda rights.

 Issues: Should the Court suppress Quarles’s statement about the gun and the gun itself because the officer had failed at the time to read Quarles his Miranda rights?

 Holding: No.

 Rationale: The Court held that there is a “public safety” exception to the requirement that officers issue Miranda warnings to suspects.

Fruit of the Poisonous Tree

 The doctrine prohibits the use of secondary evidence in trial that directly stemmed from primary evidence derived from any illegal search and seizure.

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.

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THE FIFTH AMENDMENT TO THE CONSTITUTION

Law of the Constitution

Due Process and the Right Against Self-Incrimination

“No person shall be compelled to be a witness against oneself in any criminal case,” the 5th amendment states.

 “No person shall be deprived of life, liberty or property, without due process of law.”

 Malloy v. Hogan (1964)  Made the due process clause applicable to the states.

Hiibel v. Nevada , 59 P.2d 1201 (2004)

 Facts: Larry Hiibel was arrested and convicted in Nevada state court for failing to identify himself to a police officer who was investigating an assault.

 Issue: Did Hiibel’s arrest and conviction for not telling a police officer his name violate his Fifth Amendment right not to incriminate himself and his Fourth Amendment right to be free from an unreasonable