Fifth and Sixth Amendment

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Fifth and Sixth Amendment

• Lisa A. Judge
• Police Legal Advisor
• Tucson Police Department

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Rights to Lawyers and Silence

• 5th Amendment--rooted in privilege against
  compelled self-incrimination and due process
  (PRE-INDICTMENT)
• 6th Amendment--right to an attorney during all
  stages of adversarial process. (POST-INDICTMENT)

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Questioning a Suspect
Has the suspect of questioning been formally
charged with a crime, i.e. been indicted,
arraigned or had an initial appearance before a
magistrate?
Has the suspect of questioning been formally
charged with a crime, i.e. been indicted,
arraigned or had an initial appearance before a
magistrate?
Yes. The suspects 6th Amendment protection
applies and may not be questioned regarding the
subject matter of the charged offense without an
attorney present, or a waiver of the right to an
attorney. Questioning about matters other than
the crime charged may occur in accordance with
the 5th Amendment and Miranda.
Yes. The suspects 6th Amendment protection
applies and may not be questioned regarding the
subject matter of the charged offense without an
attorney present, or a waiver of the right to an
attorney. Questioning about matters other than
the crime charged may occur in accordance with
the 5th Amendment and Miranda.
No. Determine whether Miranda warning necessary,
i.e. is person subject to custodial
interrogation? If so, follow the procedures
outlined below.
No. Determine whether Miranda warning
necessary, i.e. is person subject to custodial
interrogation? If so, follow the procedures
outlined below.
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Yes. The suspects 6th Amendment protection
applies and may not be questioned regarding the
subject matter of the charged offense without an
attorney present, or a waiver of the right to an
attorney. Questioning about matters other than
the crime charged may occur in accordance with
the 5th Amendment and Miranda.
No. Determine whether Miranda warning
necessary, i.e. is person subject to custodial
interrogation? If so, follow the procedures
outlined below.
Is the suspect in custody, meaning that a
reasonable person in the same situation would not
feel free to leave?
Is the suspect in custody, meaning that a
reasonable person in the same situation would not
feel free to leave?
Yes. Then, is the suspect being interrogated,
meaning either that the suspect is asked specific
questions, or officers words or actions are
calculated to elicit incriminating remarks from
the suspect?
No. Miranda warnings are not necessary and
statements made are admissible.
No. Miranda warnings are not necessary and
statements made are admissible.
Yes. Then, is the suspect being interrogated,
meaning either that the suspect is asked specific
questions, or officers words or actions are
calculated to elicit incriminating remarks from
the suspect?
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No. Miranda warnings are not necessary and
statements made are admissible.
Yes. Then, is the suspect being interrogated,
meaning either that the suspect is asked specific
questions, or officers words or actions are
calculated to elicit incriminating remarks from
the suspect?
No. Miranda is not required and any unsolicited
or spontaneous remarks made by the suspect are
admissible.
Yes. The Miranda warnings are necessary and any
statements taken without prior Miranda warnings
are generally inadmissible in court.
No. Miranda is not required and any unsolicited
or spontaneous remarks made by the suspect are
admissible.
Yes. The Miranda warnings are necessary and any
statements taken without prior Miranda warnings
are generally inadmissible in court.
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If Miranda warnings have been given, may
questioning take place?
If Miranda warnings have been given, may
questioning take place?
No. If suspect invokes the right to have an
attorney present, all questioning must stop until
the suspect is provided with an attorney to
assist during questioning. While it is not
absolutely required, it is strongly recommended
that you clarify an ambiguous request.
No. If suspect invokes the right to have an
attorney present, all questioning must stop until
the suspect is provided with an attorney to
assist during questioning. While it is not
absolutely required, it is strongly recommended
that you clarify an ambiguous request.
No. If suspect invokes the right to remain
silent, questioning must cease.
No. If suspect invokes the right to remain
silent, questioning must cease.
Yes, if suspect waives his or her rights under
Miranda.
Yes, if suspect waives his or her rights under
Miranda.
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If questioning must stop, may officers reinitiate
questioning?
If questioning must stop, may officers reinitiate
questioning?
If questioning must stop, may the suspect
reinitiate questioning?
If questioning must stop, may the suspect
reinitiate questioning?
Yes, if the suspect has invoked only the right
to remain silent and 1) there has been
intervening time (courts have found several hours
to be sufficient) between the first attempt to
question and the second attempt, 2) the suspect
is re-Mirandized, and 3) the suspect waives his
or her rights.
Yes, if the suspect has invoked only the right
to remain silent and 1) there has been
intervening time (courts have found several hours
to be sufficient) between the first attempt to
question and the second attempt, 2) the suspect
is re-Mirandized, and 3) the suspect waives his
or her rights.
No, if the suspect has invoked the right to
counsel.
Yes, regardless of which right was invoked.
No, if the suspect has invoked the right to
counsel.
Yes, regardless of which right was invoked.
Remember, when a suspect invokes any right under
Miranda, that right must be scrupulously
honored.
Remember, when a suspect invokes any right under
Miranda, that right must be scrupulously
honored.
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Voluntariness

• Involuntariness involves actual coercion or
  coercive police activity which exploits a
  suspects weakness or infirmity.
• Even when certain factors are present, courts
  generally find coercive police conduct is a
  necessary predicate to finding of
  involuntariness.

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Voluntariness

• Critical inquiry is whether the defendants will
  was overborne or his/her capacity for
  self-determination is critically impaired
• Courts look at a number of factors including

• Mental disability/Education level

• Age/Sophistication level

• Language barrier

• Threats/Deprivation/Promises

• Familiarity with rights and legal system

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Questioning by Undercover Agents or Informants

• Uncharged suspects/unrelated charges
• - YES
• Generally, 5th Amendment and Miranda rules apply
  (Illinois v. Perkins)
• Formally charged defendants with counsel
• - NO
• 6th Amendment prohibition against questioning
  about the charged offense (Massiah v. U.S.)

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Derivative Statements

• Unwarned statement preceding lawful, Mirandized
  statement
• Subsequent statement may be admissible. Court
  examines the totality of the circumstances,
  looking at factors such as the time between the
  illegal interrogation and the lawful
  interrogation, interveneing circumstances, and
  the flagrancy of the first violation. Oregon v.
  Elstad, 470 U.S. 298 (1985)

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Tainted Statement Used for Impeachment

• Statement must be voluntary.
• Generally allowed if the violation is
  negligent/unintentional under Michigan v. Harvey,
  494 U.S. 344 (1990) and New York v. Harris, 495
  U.S. 14 (1990).

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Questioning Outside Miranda for Impeachment

• California Attorneys for Criminal Justice v.
  Butts, 195 F.3d 1039 (9th Cir. 2000)
• Defense attorneys sued cities, police chiefs and
  officers based upon policy of intentionally
  disregarding invocation of Miranda rights in
  order to obtain impeachment evidence.
• No qualified immunity for 42 U.S.C. 1983
  violation, as right is clearly established.

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Scope of Liability for Violation

• Chavez v. Martinez, 195 F.3d 1039 (9th Cir. 2000)
• No civil liability for violation where statements
  not used.

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• During a struggle with police officers, Oliverio
  Martinez was shot repeatedly, suffering permanent
  blindness and paralysis from the waist down.  He
  was arrested at the scene and taken to the
  hospital.  Sgt. Chavez accompanied Martinez in
  the ambulance.  While medical personnel provided
  treatment, the sergeant persistently questioned
  Martinez over a 45-minute period.  During the
  questioning, Martinez frequently said he was
  "dying" and choking, was in extreme pain and
  believed he was going to die.  Although Martinez
  said he did not want to talk until after medical
  treatment, Sgt. Chavez continued questioning and
  he made incriminating statements about drug use.
  Martinez was never charged with a crime and the
  statements he made at the hospital were never
  used against him in a criminal proceeding.Martin
  ez sued Sgt. Chavez under 42 U.S.C. 1983,
  alleging that the coerced hospital interrogation
  violated his Fifth Amendment right against
  compelled self-incrimination and his Fourteenth
  Amendment due process right to be free from
  coercive interrogation. 

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• The United States Supreme Court held that there
  had been no violation of Martinezs
  constitutional rights. In a split opinion, the
  Court decided that Sgt. Chavez was not civilly
  liable for violating Martinez's Fifth Amendment
  Miranda rights because Martinez was never charged
  with a crime, and therefore, never compelled to
  be a witness against himself. The Court reasoned
  that mere coercion does not violate the text of
  the Self-Incrimination Clause absent the use of
  the compelled statements in a criminal case
  against the witness."  BUT, the Court left open
  the possibility that Chavez coercive emergency
  room interrogation did violate Martinezs
  Fourteenth Amendment Due Process right and sent
  that issue back to the trial court for
  reconsideration. The Court warned that its
  holding regarding the privilege against
  self-incrimination does "not mean that police
  torture or other abuse that results in a
  confession is constitutionally permissible so
  long as the statements are not used at
  trial"  Chavez v. Martinez, U.S.S.Ct. 2003

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• On Tap for the Court
• ?Missouri v. Seibert
• ?U.S. v. Patane
• ?Fellers v. U.S.
• and
• ?Yarborough v. Alvarado