1. TUTORIAL #3 FIFTH AMENDMENT &CONFESSIONS

3. RIGHT NOT TO BE WITNESS AGAINST SELF Cannot be compelled to testify Cannot be compelled to testify At trial At trial Grand jury Grand jury Forfeiture proceedings Forfeiture proceedings Depositions Depositions Production of documents Production of documents No negative inference in criminal case from invocation of 5 th Amendment case No negative inference in criminal case from invocation of 5 th Amendment case Prosecutor cannot comment on exercise of right Prosecutor cannot comment on exercise of right

4. “Compelled” Testimony Torture Torture Formal court process (subpoena  contempt) Formal court process (subpoena  contempt) Loss of government job (Kastigar) Loss of government job (Kastigar) DeMinimis sanctions okay (McKune) DeMinimis sanctions okay (McKune)

5. “Testimonial” Evidence Does not include physical evidence Does not include physical evidence Fingerprints Fingerprints Hair samples Hair samples Posing for photographs Posing for photographs Handwriting Handwriting Voice prints Voice prints

6. OTHER FIFTH AMENDMENT ISSUES Standing Standing Required records exception Required records exception Overcome privilege with immunity Overcome privilege with immunity Waiving privilege Waiving privilege

7. CONFESSIONS Due process challenge Due process challenge Miranda challenges Miranda challenges 6 th Amendment challenges 6 th Amendment challenges

8. DUE PROCESS CHALLENGE Involuntary Involuntary Broke the defendant’s free will Broke the defendant’s free will Totality of the Circumstances Totality of the Circumstances Cannot use for any purpose Cannot use for any purpose

9. MIRANDA CHALLENGES Triggered by “custodial interrogation” Triggered by “custodial interrogation” Custody Custody Interrogation Interrogation Remedy for violation Remedy for violation Exclude statement Exclude statement No fruit of poisonous tree No fruit of poisonous tree Impeachment okay Impeachment okay Exceptions Use for impeachment No fruit of poisonous tree Public safety exception Booking statements Sobriety tests Undercover activity Not required of foreign officials

10. Other Miranda Issues Wording of warnings Wording of warnings Timing of statement Timing of statement Waiver of Miranda rights Waiver of Miranda rights Totality of the Circumstances Totality of the Circumstances

11. Invocation of Miranda Rights Right to remain silent Right to remain silent Police can reinitiate interrogation [Oregon v. Elstad] Police can reinitiate interrogation [Oregon v. Elstad] Exception: Missouri v. Siebert (intentionally evade Miranda) Exception: Missouri v. Siebert (intentionally evade Miranda) Right to counsel Right to counsel Edwards: Only D can reinitiate communications Edwards: Only D can reinitiate communications

12. 6 th Amendment & Confessions Post-formal charges Post-formal charges No deliberately eliciting information No deliberately eliciting information Applies out of custody Applies out of custody Only applies to same offense Only applies to same offense