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