Ch11

THE 5TH AMENDMENT:DUE PROCESS AND OBTAINING INFORMATION LEGALLY

Chapter 11

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

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 the laws that apply

The Right against Self-Incrimination The 5th amendment says:

“No person shall be compelled in any criminal case to be a witness against himself”

Hiibel v. Nevada (2004) Refusing to provide proper identification

upon request from a government agent is not a denial of the 5th amendment right against self-incrimination

Due Process of Law

5th amendment also 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

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

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

Due Process of Law

Police actions that would shock the conscience were found to violate due process

Rochin v. California (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

Due Process of Law

Another found violation of the 5th amendment were laws lacking due process for juveniles

In re Gault (1967) 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

Due Process of Law

In re Gault (1967) 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

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

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 will be admissible in court

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

Voluntariness of Confessions Brown v. Mississippi (1936)

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

Voluntariness of Confessions Fikes v. Alabama (1957)

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 due process voluntariness test Just as consent for an officer to search must be

given freely, suspects must make any admissions voluntarily

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

Police Conduct

Police conduct will be considered coercive if it has the effect of overbearing one’s will

Rogers v. Richmond (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

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

Deprivations of food, drink and sleep

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

Police Conduct

Arizona v. Fulminante (1991) 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

Police Conduct

Arizona v. Fulminante 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

Characteristics of the Accused Factors such as the defendant’s:

Age education Intelligence level Mental illness 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

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?

Standard for Voluntariness

Escobedo v. Illinois (1964) 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

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

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 crime

Miranda v. Arizona (1966)

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

Miranda v. Arizona (1966)

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

Miranda v. Arizona (1966)

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 self-incrimination and counsel before questioning

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 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

The Miranda Warning

Duckworth v. Eagan (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

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

When the Miranda Warning Must be Given

Oregon v. Mathiason (1977) 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”

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

Custody

When is a person in custody?1. Has the person been told by police that

they are under arrest?2. 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?

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

Pennsylvania v. Muniz (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

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

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

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

Other Factors Indicating a Custodial Situation

People v. Shivers (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

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

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

If after hearing an officer read the Miranda warnings, suspects remain silent, this silence is not a waiver

Waiving the Rights

To waive their rights, they must state orally or in writing1. They understand their rights2. They will voluntarily answer questions

without a lawyer present

Suspects may revoke the waiver at any point in the interrogation

Right to Remain Silent

Oregon v. Elstad (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

Colorado v. Spring (1987) A waiver of Miranda rights is valid, even

though the suspect thought the questioning was going to be about a minor crime

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?”

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

Miranda Survives a Challenge Dickerson v. United States (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

Miranda Survives a Challenge Dickerson v. United States (2000)

Case has two major issues:1. Whether Miranda would remain in effect when

a federal statute did not require it2. 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

Miranda Issues Continue

We will continue to see cases that deal with Miranda and how they are administered

Chavez v. Martinez (2003) 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

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 questions

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, they will be held accountable for

wrongful acts Including crimes or civil wrongs

The Public Safety Exception

An important exception to the Miranda requirement involves public safety

New York v. Quarles (1984) 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”

The Public Safety Exception

New York v. Quarles (1984) 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

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

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

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

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

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?

Entrapment

Jacobson v. United States (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”

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

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

The Right to a Grand Jury

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

Double Jeopardy

Sattazhan v. Pennsylvania (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

United States v. Lara (2004) The Court held that you could be tried

again in federal court because the courts represented two different jurisdictions

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.

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

Illinois v. Perkins (1990) 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

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

USA PATRIOT Act

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act

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

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

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

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

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

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

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