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FIFTH AMENDMENT

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... 3. FIFTH AMENDMENT. CONFESSIONS. FIFTH AMENDMENT. RIGHT NOT ... 6th Amendment & Confessions. Post-formal charges. No deliberately eliciting information ... – PowerPoint PPT presentation

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Title: FIFTH AMENDMENT


1
TUTORIAL 3
  • FIFTH AMENDMENT
  • CONFESSIONS

2
FIFTH AMENDMENT
3
RIGHT NOT TO BE WITNESS AGAINST SELF
  • Cannot be compelled to testify
  • At trial
  • Grand jury
  • Forfeiture proceedings
  • Depositions
  • Production of documents
  • No negative inference in criminal case from
    invocation of 5th Amendment case
  • Prosecutor cannot comment on exercise of right

4
Compelled Testimony
  • Torture
  • Formal court process (subpoena ? contempt)
  • Loss of government job (Kastigar)
  • DeMinimis sanctions okay (McKune)

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

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

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

8
DUE PROCESS CHALLENGE
  • Involuntary
  • Broke the defendants free will
  • Totality of the Circumstances
  • Cannot use for any purpose

9
MIRANDA CHALLENGES
  • Triggered by custodial interrogation
  • Custody
  • Interrogation
  • Remedy for violation
  • Exclude statement
  • No fruit of poisonous tree
  • 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
  • Timing of statement
  • Waiver of Miranda rights
  • Totality of the Circumstances

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

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