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 SelfIncrimination
• 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 reapproached 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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