Evidence: Chapter 8

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Self Incrimination Clause of the Fifth Amendment: no person "shall be compelled in any criminal case to be a witness against himself..."
Compulsion****T/F and MC: under The Fifth Amendment and Self-Incrimination; compulsion can occur in a number of formal as well as informal circumstances; compulsion can occur: during questioning, in written documents, and when threatened with noncriminal sanctions for failing to testify
Compulsion During Questioning******T/F and MC: under Compulsion; a person can be compelled to testify against himself or herself, in violation of the Fifth Amendment, in at least four questioning circumstances: custodial interrogation, trial, questioning of grand jury witnesses, and non-custodial questioning; trial witnesses are not entitled to notification of their "right to remain silent" (defendant is entitled); witnesses who testify before grand juries are likewise not required to be advised of their privilege against self-incrimination; finally, noncustodial questioning of witnesses outside the courtroom creates potential for coercion-however, the courts have held that out-of-court witnesses do not need to be advised of their privilege against self-incrimination
Defendants v. Witnesses: under Compulsion During Questioning; the three situations just discusses concern witnesses, not defendants; the rules are considerably different with regard to criminal defendants; a defendant in a criminal trial cannot be compelled to testify under any circumstances; defendants enjoy absolute Fifth Amenment protection from self-incrimination during criminal proceedings; however, once they "take the stand" they can be compelled to answer questions; they also can be held in contempt for failing to do so; this same rule applies to witnesses
Fair Examination Rule******MC: under Compulsion During Questioning; ensures that witnesses at either a trial or a grand jury hearing can be compelled to answer questions once they waive their Fifth Amendment privilege and begin to testify
Incrimination************T/F and MC: under The Fifth Amendment and Self-Incrimination; incriminating statement-any compelled statement that might be used in a "criminal proceeding"; if a statement is compelled but is not used in a criminal proceeding, it cannot have been obtained in violation of the Fifth Amendment's self-incrimination clause; as a general rule, any criminal defendant has the right to remain silent at grand jury as well as trial proceedings; such individuals can also refuse to "answer official questions put to him in any...proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings"
Definition of "Criminal Proceeding"*********MC: under Incrimination; courts usually focus on the issue of "punitive" sanctions in determining whether the Fifth Amendment's self-incrimination clause applies; criminal proceedings followed by punitive sanctions
Immunity*********T/F: under Incrimination; the gov't is permitted to compel answers from a criminal defendant, but only if: the nature of the information is irrevelant to an criminal matter, a grant of immunity protecting the individual against the furture use of any statements resulting from questioning is provided, or some other guarantee that the information will not be used against the defendant is provided; two types of immunity used by the courts: use and derivative use immunity and transactional immunity
Use and Derivative Use Immunity: under Immunity; immunizes only answers to questions asked
Transactional Immunity******MC: under Immunity; extends immunity to matters discussed far beyond scope of the questions asked
The 'Testimonial Evidence' Requirement******T/F and MC: under The Fifth Amendment and Self-Incrimination; still another restriction concerning the scope of the Fifth Amendment's protection against self-incrimination: the protection is limited to "testimonial evidence"; not only must answers be compelled in a criminal proceeding, they must also give rise to "testimonial evidence"; physical evidence is not protected by the Fifth Amendment; as a general rule, the gov't can compel any criminal defendant to supply incriminating physical evidence without violating the Fifth Amendment; indeed, the gov't can force the accused to wear a particular outfit, submit to the extraction of a blood sample, participate in a lineup, or produce a writing sample or voice exemplar; in addition, the Fifth Amendment "offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture"
Confessions*********T/F: our analysis of the Fifth Amendment that follows pertains specifically to confessions and admissions; a confession occurs when a person implicates himself or herself in criminal activity following police questioning or interrogation; an admission need not be proceeded by police questioning-a person can simply admit to involvement in a crime without any police encouragement; the Fifth Amendment's self-incrimination clause applies to a variety of forms of compulsion
The Various Aprroaches to Confession Law*******T/F: under Confessions; not only can confessions and admissions be protected by the Fifth Amendment, but they can also be protected by the Fourteenth Amendment's due process clause as well as the Sixth Amendment's right to counsel clause
The Due Process 'Voluntariness' Approach *********T/F and MC: under Confessions; a confession is considered involuntary when, under the totality of circumstances that led to the confession, the defendant is deprived of his or her "power of resistance"; courts take a case-by-case approach to determine voluntariness; this requires focusing on two issues: the police conduct in questioning the suspect and the characteristics of the suspect; using physical brutality to coerce a confession violates the Fourteenth Amendment; confessions obtained by brutality and torture cannot be admissible under any concept of due process; as far as characteristics of the accused are concerned, conditions such as disabilities and immaturity have resulted in excluded confessions
The Sixth Amendment Apporach*****MC and T/F: under Confessions; Massiah v. U.S. led to the rule that the Sixth Amendment's guarantee to counsel in all "criminal proceedings" is violated when the gov't "deliberately elicits" incriminating responses; if the Sixth Amendment's right to counsel is "to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse"; furthermore, "Massiah was more seriously imposed upon...because he did not even know that he was under interrogation by a gov't agent"; in Massiah the court held that the Sixth Amendment right to counsel applies once formal proceedings have begun (preliminary hearing, trial, etc.); in Escobedo, the Court seemed to broaden the scope of the Sixth Amendment by holding that it also applies once the accused becomes the focus on an investigation by the police
The Miranda Approach
*********MC and T/F: Malloy v. Hogan*- the Supreme Court held that the Fifth Amendment applies to the states; In Miranda v. Arizona, the court announced the following rule: "The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination; Supreme Court limited its decision in Miranda to custodial interrogations
Custody*****MC and T/F: under The Miranda Approach; Miranda applies when "a person has been taken into custody; an arrest is a clear-cut case of police custody; the courtt has stated, however, that "the only relevant inquiry in analyzing the custody issue is how a reasonable man in the suspect's position would have understood his situation (reasonable man test);
Custody, Typical Traffic Stops, and Stops Not Involving Vehicles*****MC and T/F: under Custody; custody does not take place in the typical traffic stop- noting that vehicle stops are "presumptively temporary and brief" and sufficiently public to avoid the appearance of being coercive"; the same applies to stops not involving vehicles- Miranda permits law enforcement officers to engage in "general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process..."-with regard to Terry stops in particular, "the comparitively nonthreatening character of investigative detentions explains the absence of any suggestion in our opinions that Terry (not custodial interrogation b/c) stops are subject to the dictates of Miranda
Custody and Questioning at the Police Station or Equivalent Facility****T/F: under Custody; questioning at the police station or an equivalent facility can also rise to the level of custody; however not all stationhouse questioning can be considered custodial (rule); Miranda is not implicated "if the suspect is not placed under arrest, voluntarily comes to the police station, and is allowed to leave unhindered by the police after a brief interview" (reasoning)
Interrogations*******T/F and MC: under the Miranda Approach; interrogation- "questioning intitiated by law enforcement officers"; any questions that tend to incriminate-that is, those that are directed toward an individual about his or her suspected involvement in a crime- are considered interrogation; in addtition to "express questioning," the "functional equivalent" of a question is also possible-the functional equivalent of a question includes "any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect"; simple departures from Miranda-as long as all the essential information is communicated- will not render confessions thereby obtained inadmissible in a criminal trial (rule)
The Public Safety Exception to Miranda********T/F and MC: under the Miranda Approach; on some occasions custodial interrogation is permissible without Miranda warnings; if public safety is in jeopardy, no warnings are required (New York v. Quarles*); "The need for answers to questions in a situation posing a threat to public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination"; The Court also made it clear that the appropriate test for determining whether a threat to public safety exists is an objective one-that is, one based on what a reasonable person in the same circumstances would believe
Waiver of Miranda*******T/F: part of the Miranda Approach; in Miranda, the Supreme court stated that if a person talks after being read the warnings, "a heavy burden rests on the gov't to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel"; gov't need only show the validity of a waiver by a "preponderance of the evidence" (51% rule); Supreme Court held that the "totality of the circumstances approach is adequate to determine whether there has been a waiver";
Must the Waiver be Express?: under Waiver of Miranda; the answer is no; in the past, the Court preferred an express waiver; in Miranda, the Court noted that a valid waiver will not be presumed; in Westover v. U.S., the Court stated that an "articulated waiver" is required before a confession will be considered admissible; in North Carolina v. Butler, the court decided otherwise- "a course of conduct indicating waiver" is sufficient for a valid waiver to take place
Waiver Must be Voluntary*****T/F: under Waiver of Miranda; in addition to the requirement that the waiver be "knowing and intelligent," a valid Miranda waiver must also be voluntary; threats, physical force, and the like can lead to involuntary confessions; however, in Fare v. Michael C.*, the court held that the confession obtained from a 16 year old was not involuntary
Questioning After Assertion of One's Right to Remain Silent: under the Miranda Approach; questioning must cease once an accused asserts his or her right to remain silent; "if the individual states that he wants an attorney, the interrogation must cease until an attorney is present"
Exception to Questioning After Assertion of One's Right to Remain Silent: under Questioning After Assertion of One's Right to Remain Silent; there is at least one circumstance where the police can question a suspect after he or she asserts the Miranda rights; in Michigan v. Mosely, the Supreme Court permitted the questioning after an assertion of Miranda-two hours after the defendant stated that he did not want to talk, a different police officer confronted him in a different room about another crime and read him his Miranda rights for a second time; the Court said that the second officer's actions were acceptable because the "police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation"; the key to this case was that the second set of questions concerned a separate crime
The Role of the Exclusionary Rule in the Confession Analysis******MC: under Confessions; a confession obtained in violation of Miranda or some constitutional provision will be excluded
Confessions and Standing: under The Role of the Exclusionary Rule in the Confession Analysis; for a confession (or evidence thereby obtained) to be excluded, the person arguing as such must have standing; Miranda is considered a "personal" right; thus, a person arguing for exclusion of an (unconstitutionally obtained) incriminating statement must have standing
Confessions and Impeachment: under The Role of the Exclusionary Rule in the Confession Analysis; another situation in which incriminating statements obtained in violation of Miranda are admissible is when such statements are used for purposes of impeachment
Confessions and Fruit of the Poisonous Tree: under The Role of the Exclusionary Rule in the Confession Analysis; does not apply to Miranda confessions; Court held that the Fourth Amendment fruit of the poisonous tree doctrine "did not control" the admissibility of improperly obtained confessions; Oregon v. Elstad-the made clear that evidence obtained from violations of Miranda is admissible, but only if voluntarily obtained
Identification Procedures: identification procedures include those procedures allowing witnesses of crime to identify perpertrators; the three most common types of identification procedures are lineups, showups, and photographic arrays
Lineups*******MC: under Identification Procedures; the suspect is placed alongside several other people who resemble the suspect; suspects can be forced to participate in lineups because lineups exhibi physical characteristics, not testimonial evidence; suspects placed in lineups can also be required to supply voice exemplars, but the suspect's use of his or her voice in this context is solely for identification purposes, not as a confession; if a suspect refuses to participate in a lineup, he or she can be cited with contempt and the prosecutor can comment at trial about the suspect's refusal to cooperate; an overly suggestive lineup violates due process; The Model Rules for Law Enforcement propose several steps to minimize suggestiveness in police lineups: lineups should consist of at least five people, including the suspect, persons in the lineup should have similar physical characteristics, and the suspect should be permitted to choose his or her place in line
Showups: under Identification Procedures; the suspect is brought before the witness-alone; one-on-one victim-offender confrontations, usually conducted outside the courtroom setting; if the showup is unnecessarily suggestive under a "totality of circumstances" analysis, any identification that flows from it will not be admissible in court; whenever possible, lineups should be used in liew of showups-the reason is that showups can be highly suggestive and possibly violate the Fourteenth Amendment
Photographic Arrays: under Identification Procedures; several photographs, including one of the suspect, are shown to a witness or victim; photographic identifications involves displaying a picture of the suspect along with several otehr people to a victim or witness for the purpose of identification; there is no Sixth Amendment right to counsel during photographic identification (need for lineups and showups); however, due process protections do apply; several photographs of like individuals should be shown to minimize unnecessary suggestiveness
Constitutional Restrictions on Identification Procedures: under Identification Procedures; challenges have stemmed from the Fourteenth Amendment's due process clause, the Fifth Amendment's self-incrimination clause, and the Sixth Amendment's right-to-counsel clause; Fourth Amendment also

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