crim pro - 5th Amendment.txt

  1. Miranda right?
    5th Am privilege against self-incrimination protects compelled testimonial (not physical) evidence.
  2. Content of Miranda Warnings (need not be verbatim as long as the substance remains)
    • a) Right to remain silent
    • b) Everything you say can be used against you
    • c) Right to an attorney
    • d) If you cannot afford an attorney, one will be provided for you.
    • e) You have a right to terminate the interrogation at any time.
  3. Miranda applies to?
    Custodial interrogation
  4. What is Custody?
    Person is in custody if, at the time of the interrogation, he is not free to leave. (objective std)
  5. What is Interrogation?
    Any conduct where the police knew or should have known that might illicit an incriminating response
  6. Miranda exceptions?
    • 1) public safety exception
    • 2) if ? doesn’t know talking to informant, Miranda does not apply because no coercion
    • 3) spontaneous statement, Miranda is not required
  7. Miranda Waiver?
    • Must be knowing, voluntary, and intelligent under totality of circumstances
    • No waiver from silence or shoulder shrugging
  8. What if statement made before (and after) Miranda warnings?
    • Interrogation/stmt -> Miranda -> Interrogation/stmt: see if 1 long interview or 2 separate
    • Factors considered:
    • 1) Same Qs/As in both interrogations
    • 2) Overlapping content of stmts
    • 3) Timing/setting of stmts
    • 4) Different cops interviewing
    • 5) Time b/n interviews
    • 6) Degree to which 2nd round treated as continuation of 1st
  9. Invoking the Right to Remain Silent
    • 1) Invocation must be unambiguous. Merely remaining silent is not enough, even if it’s for hours.
    • 2) If invoked, all questioning related to particular crime must stop
    • 3) Police may reinitiate questioning after D invokes RTS: as long as they “scrupulously honor” ?’s request (can’t badger ? into talking, and must wait significant time before reinitiation)
    • e.g., Re-Mirandize ? of his rights; Questioning then limited to crime not the subject of earlier questioning
  10. Invoking right to counsel
    • 1) must be unambiguous.
    • 2) all questioning must stop unless detainee waives right to counsel or there is a break in custody and 14 days have passed
    • 3) NOT offense specific! all questioning must cease.
  11. Miranda statements used for impeachment?
    Statements made in violation of Miranda are admissible to impeach D's trial testimony.
  12. Double Jeopardy
    • Under the 5th Am, Person may not be retried for the same offense twice, by the same sovereign
    • 1) attaches when jury is sworn in, or in a bench trial when first witness is called
    • 2) exceptions: hung jury, manifest necessity aborts first trial, retrial after a successful appeal, breach of a plea bargain by defendant
  13. Double Jeopardy - what is the same offense?
    • 1) Same transaction can give rise to 2 crimes (w/o implicating DJ problem), if: each crime requires proof of an additional element that the other does not.
    • 2) ? can be given convicted of 2 offenses from the exact same crime (same elements for each), if: legislature specifically intended offenses to carry separate punishments… as long as punishment given in SAME TRIAL
    • 3) Retrial for lesser included offense barred.
    • 4) Retrial for greater offense barred, UNLESS: victim dies after attachment of jeopardy for battery, then murder can be charged
  14. 5th Am Prosecutorial Misconduct
    • 1) Prosecutor cannot make a negative comment about a defendant’s failure to testify OR D’s choice to remain silent after being given Miranda warnings.
    • 2) Prosecutor can comment on D’s failure to take the stand when the comment is in response to D’s counsel’s assertion that D was not allowed to explain his side of the story.
    • 3) If prosecutor impermissibly comments on D’s silence, the harmless error test applies: thus, prosecutor’s conduct may not be fatal to a conviction.
  15. When do you have to assert 5th Am privilege?
    You must assert your 5th Amendment privilege the first time you can (even in civil proceeding, or legislative hearing, or wherever), or you have waived that privilege for all subsequent prosecutions, and you can’t bar that evidence.
  16. When is 5th Am privilege against self-incrimination terminated?
    • 1) Govt's Grant of Immunity to you
    • 2) No possibility of incrimination (e.g., statute of limitations)
    • 3) Waiver
Card Set
crim pro - 5th Amendment.txt
ca bar crim pro 5th Am