1. Chapter 15 Self Incrimination “If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.“ -Charles Evan Hughes Home Building & Loan Ass'n V Blaisdel 1934

2. Featured Case When A Child Kills In 2011, 12 year old Christian killed his 5 year old brother. After holding him for 5 hours he was Mirandized at 2:25 AM, and confessed to the killing. The defense sought to exclude the confession. The court suppressed some statements but admitted others. Christian plead guilty to manslaughter.

3. In the previous case Christian was 12. Should there be a fixed age at which a person can knowingly waive his rights? Should that age be related to other factors like consent to marry, buy liquor or vote? Should the courts instead focus on an individual’s capacity, not on any fixed age? Applying the Law How Old is Old Enough?

4. Learning Objectives Understand the scope of the 5 th Amendment protection against self incrimination. State Miranda and when it applies. Describe how Miranda is waived. Explain Miranda for prisoners and in sequential interrogations. List procedures for interrogating indicted or arraigned persons.

5. Basics of Self Incrimination Rights Privilege under Fifth Amendment – No person can be required to make a statement against themself in a criminal proceeding. Situations that are not covered by the 5 th – Statute of Limitations – if suspect can no longer be charged – Immunity Use – can’t use statement against party Transactional – can’t use statement or what is discovered from it – Federal Immunity – covers state charges and vice versa

6. Double Jeopardy Can not be retried if convicted or acquitted of a crime. – Unless you appeal – Prosecution can not appeal a not guilty verdict – Prosecution can appeal an appellate court decision Can’t be charged with more serious crime if convicted of a lesser offense. Double jeopardy does not apply if no verdict is reached at trial (hung jury).

7. Nontestimonial Compulsion 5 th Amendment applies only to testimony Bodily Fluids – Can’t refuse to provide samples based on 5 th Amendment – Can compel samples after arrest or with warrant Identification Features – Person’s appearance is not protected – Still may be issues regarding 4 th Amendment

8. Nontestimonial Compulsion (cont) Handwriting and Voice – Exemplars are not testimonial, but content not admissible, just comparison Sobriety Tests – Actions and results of test are not protected – Questions asked during test may be inadmissible as to content, but not behavior The fact that words were slurred admissible, not what particular words used

9. Hayes v. Florida Police were investigating several burglaries and rapes. A fingerprint was found at the scene of one of the crimes. Police compelled Hayes to come to police station on threat of arrest, but lacked probable cause to actually arrest. The police took fingerprints from Hayes, matched to latent print and then arrested him. The Supreme Court ruled you can’t force individual to supply fingerprints without warrant or probable cause to arrest. 470 US 811 (1985)

10. In the Hayes case the police needed a warrant to get fingerprints. Could the police have simply handed him a glass and asked for it back with his prints? Why are fingerprints protected? Should we expect to keep our fingerprints private? Why or why not? Applying the Law Are fingerprints private?

11. How is the Privilege Invoked Key is at what stage the case is in No right against self incrimination prior to arrest Suspect entitled to Miranda warnings once in custody At trial no comments about silence allowed Witnesses are called, then state they are taking the 5 th It is perjury if defendant takes the stand and lies

12. Griffin v. California Griffin was convicted of murdering Essie Mae Hodson. Griffin refused to testify. Prosecution at closing stated ‘Essie Mae is dead. She can’t tell you her side of the story. The defendant won’t.” His conviction and death sentence was overturned. Prosecution can’t make such statements at trial or during sentencing stage. 380 US 609 (1965)

13. When does the right to silence end? Some argued that the right exists at trial, but not during sentencing. Should the judge have to tell the jury silence is not to be construed as guilt? Can the judge simply remain silent if the defendant does? Applying the Law

14. Miranda From the case of Miranda v. Arizona – Miranda arrested and questioned by police and not told of his rights – confession excluded Four Key Issues: – What are the contents of the warning? – When is Miranda required to be given? – How may Miranda rights be waived? – What are the rules for sequential interrogation?

15. Miranda v. Arizona Ernesto Miranda arrested in Phoenix for kidnapping and rape. He confessed after two hours of interrogation. He signed a statement that the confession was voluntary. The Supreme Court threw out the confession. Expansion of right against self incrimination beyond what is simply ‘free and voluntary’. Creation of basic Miranda rights. 384 US 436 (1966)

16. Miranda expanded rights for suspects being interrogated. Should there be rights for suspects who are simply stopped? Should you be informed you don’t have to consent to a search? Should you be informed you don’t have to answer questions, before an arrest? Applying the Law Other Miranda Rights

17. Contents of Miranda Warning Content is not exact – Can expand rights covered – Can slightly modify words Four Points – Right to Remain Silent – Anything you say can and will be used against you in court – Right to have attorney present during questioning – If unable to afford an attorney you are entitled to have a free court appointed one

18. The Miranda Rights Right to Remain Silent – From time of Miranda warning – Covering any question – written or oral Use of Statement – Used as evidence or for impeachment Right to Attorney – Once invoked questioning must stop Indigent Suspect – Eligibility determine by courts, but questioning stops till determination

19. Special Cases Juveniles – Depends upon the age and appreciation of rights – If ‘infants’ – under 7 – no possible waiver – Generally seek parental waiver Mentally Handicapped – Mere low intelligence does not prevent waiver – Must be severe mental retardation Intoxicated – Waiver allowed unless extreme impairment

20. When is Miranda Required? Custodial Interrogation – If suspect is formally under arrest – If suspect is no longer free to leave – Does not cover traffic stops Why suspect in custody does not matter. Applies only to questioning by government, not private parties.

21. Orozco v. Texas Orozco was questioned by officers at 4 AM in his bedroom about a homicide. He had not yet been formally charged with murder. If, as was the case, Orozco was not free to leave he was in custody. Once in custody your right against self incrimination is triggered. The confession was excluded. 394 US 324 (1969).

22. The Orozoc case limits admission of confessions if the suspect is in custody. What about at traffic stops? What about students in schools who are not free to leave the property? What about during a Terry Stop? Applying the Law Free to Go?

23. When Miranda is NOT Required Voluntary interview or statements Booking – General matters are not covered – Name, address, DOB and basic information Public Safety Exception – In dire emergencies

24. New York v. Quarles A rape victim identified Quarles as the perpetrator. Police frisked Quarles and found an empty gun holster. Concerned about the loose weapon he asked its’ location, without giving Quarles his Miranda rights. The gun was still admissible when found under the ‘public safety’ exception. 467 US 649 (1989)

25. In Quarles the courts created the public safety exception. What other public dangers would be enough to warrant disregarding Miranda rights? When does the exception end? What can the police do if the suspect refuses to answer? Applying the Law Public Safety

26. Waiver of Miranda Any waiver must be knowing, intelligent and voluntary. Intelligent – Basic level of intelligence necessary to understand rights Voluntary – No physical coercion – Applies only to police and their agents – No ‘Third Degree” – Look at totality of circumstances

27. Continuation of Questioning Suspects need not state they wish to continue with questioning No explicit waiver of Miranda is required Silence will generally allow questioning to continue

28. Sequential Interrogations Defined – Police have a second interrogation – Often based on information from first interrogation If first was improper can not use it as basis for second. If first was voluntary, but not Mirandized, second may or may not trigger fruit of poisonous tree.

29. Sequential Interrogations (cont) Original interrogation may be admissible to impeach. Can have second interrogation without new Miranda warning, if given in first interrogation. – But passage of time may mandate new warning

30. Invocation of Rights If suspect invokes right to silence interrogation must end – But may later try to renew interrogation If suspect invokes right to attorney: – In custody – all questioning stops – No new questioning until attorney present – Don’t need to stop if request is unclear – Applies even to questions about different crimes By different officer without knowledge of request

31. Edwards v. Arizona Edwards was charged with robbery, burglary and homicide. Initially he cooperated but eventually requested that he speak to an attorney. The next day the police restarted interrogations, without a defense attorney present. The Supreme Court ruled the later interrogation is inadmissible. 451 US 477 (1981)

32. Berghuis v. Thompkins Thompkins was arrested for a homicide. He was informed of his right to remain silent and he did remain silent. Thompkins however did not say he was remaining silent or ask for attorney. Police continued interrogation and got a confession. The Supreme Court allowed the confession saying Thompkins had to affirmatively ask to remain silent. 560 US ____ (2010)

33. Special Situations Illegal Arrest – Miranda will not cure illegal arrest – Exclusionary rule applies Impeachment – If voluntary, may use non-Mirandized statements to impeach Post Arraignment or Release – Police still may not question