chapter 10 - the fifth amendment: obtaining information legally

© 2015 Cengage Learning

Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver

Chapter 10The Fifth

AmendmentObtaining

Information Legally


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. Even though the world revolves around

communication, and electronic advancements continue to defy the imagination, the criminal justice system still focuses on the oldest form of communication: Talking.


The 5th amendment says:o “No person shall be compelled in any

criminal case to be a witness against himself.”

5th amendment also states:o “No person shall be deprived of life, liberty

or property, without due process of law.” Malloy v. Hogan (1964)

o Made the due process clause applicable to the states.


Facts: A stopped motorist refused to provide proper identification on request of the police officer investigating an assault involving a similar vehicle.

Issues: Does the Fifth Amendment include the right to refuse to provide identification to the police during a routine law enforcement Terry stop?

Holding: No. Rationale: The initial stop was based on reasonable

suspicion, satisfying the 4th Amendment requirements, and the Fifth Amendment prohibits only compelled testimony that is incriminating.


Due process- provides rules and procedures to ensure fairness to an individual and to prevent arbitrary government actions.o The 5th and 14th Amendments constitutionally

guarantee the 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.

Police actions that are extreme have been found to violate due process.


Facts: Deputies entered Rochin’s home through an unlocked door and saw him put 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.

Issues: Did the police procedure violate the Fifth Amendment privilege against self-incrimination and the Due Process Clause of the 14th Amendment?

Holding: Yes. Rationale: The police violated Rochin's right to due

process of law. Due process was an admittedly vague concept, but it prohibited "conduct that shocks the conscience."


This area of law has been the subject of continued judicial examination.

When will a confession be admissible as evidence in court?o Early common law permitted confessions to be

obtained by any manner, including force or threat of force.

o The reliability of such admissions is to be questioned.o While the need for interrogations by law enforcement

is acknowledge, not all confessions will be admissible in court.


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.


Facts: Two individuals were convicted of murder, the only evidence of which was their own confessions that were procured after violent interrogation including whippings.

Issues: Can a confession be used as evidence if extracted after police violence?

Holding: No. Rationale: In the first confession case decided by

the Supreme Court, a defendant’s confession, when extracted through police violence, cannot be entered as violence for the process to acquire such an admission violated the due process clause of the Fourteenth Amendment.


The Courts have identified two factors in assessing the voluntariness of a confession:1. The police conduct involved. 2. The characteristics of the accused.


What are some conduct that violates due process?o Threats of violenceo Confinement under shockingly inhumane conditionso Interrogation after lengthy, unnecessary delays in

obtaining a statement between arrest and presentment before a neutral magistrate

o Continued interrogation of an injured and depressed suspect in a hospital intensive-care unit

o Deprivations of food, drink and sleep


What are examples of police action that do NOT violate due process?o Promises of leniencyo Encouraging a suspect to cooperateo Promises of psychological treatmento Appeal to religious believeso Trickery and deceit


Factors such as the defendant’s:o Ageo Educationo Intelligence levelo Mental illnesso 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.


There is a totality of circumstances test.o Was the admission truly voluntary?o Were the individual’s constitutional

guarantees protected?o Was the good of the people balanced

with the government’s and the accused's freedoms?


Facts: Escobedo asked for his lawyer. His attorney arrived at police headquarters soon after the petitioner did and was not allowed to speak to his client as the officers said they had not completed questioning.

Issues: If a suspect has been taken into police custody and interrogated by police without their request to see an attorney being honored, nor being advised of their right to remain silent, have they been denied effective assistance of counsel under the Sixth Amendment?

Holding: Yes. Rationale: When the process shifts from investigatory

to accusatory, the accused must be permitted to consult with his/her lawyer.


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.


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.


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.


This decision actually directs police officers on what to say to individuals that are in custody before questioning them.

The Constitution requires that I inform you that:o You have the right to remain silent.o Anything you say can and will be used against you in court.o You have the right to talk to a lawyer now and have him present

now or at any time during questioning.o If you cannot afford a lawyer, one will be appointed for you without

cost. Some officers have a “soft Miranda warning” which is less

harsh.o This version is permissible as long as all the elements of the

warning are present.


Custodial interrogationo 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.o 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.

o Miranda warnings are required only when there has been such restriction on a person’s freedom as to render him “in custody.”


Waivero A purposeful and voluntary giving up of a known right.

Suspects must know and understand their constitutional rights to legally waive them.

Suspects may revoke the waiver at any point in the interrogation.

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

To waive their rights, they must state orally or in writing1. They understand their rights.2. They will voluntarily answer questions without a lawyer present.


An exception is when questioning is done by a private security officer.o Why?o Not bound by the 4th amendment. o Only government agents are.• However, they will be held accountable for

wrongful acts, including crimes or civil wrongs.


An important exception to the Miranda requirement involves public safety.

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


Facts: After being stopped and frisked, revealing an empty shoulder holster, respondent Benjamin Quarles said “the gun is over there” in response to an officer’s question about its whereabouts. Only then did the officer give the respondent his Miranda warnings.

Issues: Was Miranda violated? Holding: No. Rationale: 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 doctrine would prohibit the use of secondary evidence in trial that was called directly from primary evidence derived from any legal search and seizure.

Unlike Fourth Amendment violations, in which the fruit of the poisonous tree doctrine applies, violations of Miranda do not restrict the use of evidence gleaned from a statement made in the absence of Miranda.


Right to a grand jury indictment.o The only unincoporated right under the

5th. Prohibition against double jeopardy. Right to receive just compensation

when government takes private property.


The Act significantly improves the nation’s counterterrorism efforts by:o Allowing investigators to use the tools already available

to investigate organized crime and drug trafficking.o Facilitating information sharing and cooperation among

government agencies, so they can better “connect the dots.”

o Updating the law to reflect new technologies and new threats.

o Increasing the penalties for those who commit or support terrorist crimes.