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Chapter 7 Compulsory Self-Incrimination


Fifth Amendment does not apply to responses to routine booking questions. Persons who have already been tried for crime about which they are questioned may not ... – PowerPoint PPT presentation

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Title: Chapter 7 Compulsory Self-Incrimination

Chapter 7 Compulsory Self-Incrimination
Self-incriminating evidence Two categories
  • Testimonial evidence communication of thoughts
    or information in response to official questions
    or interrogations.
  • Physical evidence all evidence other than
    testimonial. Can be either appearance and bodily

  • Appearance evidence evidence obtained from body
    characteristics that suspect routinely exposes to
  • Bodily evidence physical evidence obtained from
    body by 1) searching parts not normally exposed
    to public, 2) seizing biological materials, or 3)
    seizing foreign substances on or inside body

Note Compulsion to furnish self-incriminating
physical evidence is regulated by Fourth Amendment
Fifth Amendment Protection Against Testimonial
  • The Fifth Amendment privilege against testimonial
    self-incrimination is violated whenever
    government compels disclosure of testimonial
    evidence that could later be used against the
    person in a criminal proceeding.

There are two levels of Fifth Amendment protection
  • Absolute right to remain silent during custodial
    interrogation and at their criminal trial.
  • In all other situation, citizens may be compelled
    to appear and testify, but are privileged to
    refuse to answer specific questions if the answer
    might tend to incriminate them.

Prerequisites for Application of Fifth Amendment
  • Fifth Amendment is violated when citizen is
    compelled to furnish self-incriminating
    testimony. Three prerequisites
  • 1) Testimonial-Communication of persons
    thoughts, beliefs, or knowledge. May be oral
    written, or inferred from persons conduct. Note
    It does not include persons handwriting or voice
    characteristics, which are a form of physical
    evidence. Compelled physical evidence does not
    violate Fifth Amendment

Prerequisites of Fifth Amendment, contd.
  • 2) Compulsion Occurs when government demands
    disclosure of information that is backed by
    threat of sanction
  • 3) Self-Incrimination To be self-incriminating,
    compelled answer must expose person to risk of
    criminal prosecution.

Fifth Amendment Prerequisites, contd
  • A. Fifth Amendment does not apply to responses
    to routine booking questions.
  • Persons who have already been tried for crime
    about which they are questioned may not invoke
    Fifth Amendment because of double jeopardy.
  • Persons who have been granted immunity may not
    invoke the 5th.

  • Absolute Immunity- exempts from prosecution for
    crimes revealed during compelled testimony
  • Use Immunity does not exempt from prosecution
    it bars the government from using any information
    revealed during compelled testimony, including
    evidence derived from it.

Immunity, contd.
  • Use immunity (including derivative) is adequate
    to satisfy 5th Amendment requirements for
    compelling testimony.
  • Only prosecutor has authority to grant immunity.
    If police promise immunity to elicit information
    from a suspect, the suspects statement will be
    considered involuntary and will be suppressed.
  • Class discussion questions.

Invoking Fifth Amendment
  • Criminal defendants have Fifth Amendment right to
    remain silent at their criminal trial.
  • Witnesses other than criminal defendants do not
    have right to remain silent. They must take the
    witness stand and may invoke privilege against
    self-incrimination only if they are asked
    questions that call for an incriminating response.

Waiving the Privilege
  • Criminal defendants by voluntarily taking the
    witness stand and testifying on their own behalf.
  • Witnesses other than criminal defendants when
    they voluntarily answer incriminating questions
    without invoking the privilege.

Protection from Adverse Consequences from
Exercising Privilege Against Self-Incrimination
  • When defendant chooses not to testify, judges and
    prosecutors are prohibited from making any direct
    adverse comment during trial about defendants
    decision not to testify.
  • Witnesses other than criminal defendants are
    protected against adverse consequences only when
    consequences are imposed as penalty for
    exercising 5th Amendment rights

  • When litigant in civil case invokes 5th Amendment
    and refuses to answer relevant questions, judge
    may instruct jury to find in favor of opposing
    party on the matter the witness has refused to

Self-Reporting Laws and Fifth Amendment
  • Citizens involved in criminal activity are not
    excused from complying with reporting laws, such
    as IRS laws, which serve a legitimate regulatory
  • Citizens may refuse to comply with government
    reporting laws that serve no regulatory purpose
    other than forcing them to disclose their
    criminal activity.

Fourth Amendment Protection Against Bodily
  • Fifth Amendment protects only testimonial
    evidence. Evidence derived from suspects body
    rather than mind is physical evidence and thus,
    not protected by Fifth Amendment
  • Schmerber v California blood tests did not
    violate 5th Amendment.

Fourth Amendment Bodily Self-Incrimination,
  • Pennsylvania v Muniz Miranda warnings are
    necessary only when the police seek to elicit
    self-incriminating testimony from suspect.
    Warnings not required before compelling suspects
    to cooperate in generating self-incriminating
    physical evidence, e.g. fingerprinting,
    photograph, lineup, handwriting/voice samples,
    urine, blood, field sobriety tests, etc.

Fourth Amendment Bodily Self-Incrimination,
  • Compelled production of physical evidence is
    regulated by Fourth Amendment. The Fourth
    Amendment protects three discrete interests
    citizens have
  • Freedom of movement,
  • Bodily privacy, and
  • Bodily integrity

Fourth Amendment, contd.
  • Physical evidence taken from suspects body is
    divided into two categories 1) Appearance
    evidence, and 2) bodily evidence.
  • 1) Appearance Evidence evidence taken from
    suspects body without invading his privacy,
    penetrating body surface, or seizing biological
    or foreign materials.
  • 4th Amendment interest invaded freedom of

Fourth Amendment, contd.
  • Appearance evidence includes evidence obtained
    from the following procedures lineups, showups,
    photographs, fingerprints, body measurements,
    voice and handwriting exemplars, and field
    sobriety tests
  • Compelled production of appearance evidence is
    permissible whenever police have constitutional
    grounds to seize and detain suspect long enough
    to perform the procedure.

  • All appearance procedures are permissible when
    police have probable cause for arrest
  • Appearance evidence procedure that can be
    completed quickly in the field may be performed
    if police have reasonable suspicion for Terry
    stop. However, may not transfer suspect to
    station under Terry.

  • 2) Bodily evidence Evidence derived from a
    suspects body by 1) searching areas not
    normally exposed to public, 2) penetrating body
    surface, or 3) removing biological or foreign
  • Includes following procedures 1) removing
    residue from body surface, 2) taking x-rays, 3)
    taking body tissue and fluids (e.g. blood, semen,
    etc.) 4) performing strip searches and body
    cavity searches, and 5) reaching into suspects
    mouth or pumping stomach to recover evidence.

  • Unlike appearance evidence, which involves no
    intrusion beyond seizure of person, procedures
    involving bodily evidence either expose matters
    in which suspect maintains a reasonable
    expectation of privacy, resulting in a Fourth
    Amendment search, or involve seizure of tangible
    items from a person, triggering Fourth Amendment
    seizure protection.

Revisit Schmerber v California
  • No Fifth Amendment issue, because extracting
    blood does not involve testimony.
  • Fourth Amendment issue Compelled intrusion into
    Schmerbers body to obtain blood sample is a
    seizure of his person and a search for evidence
    and is therefore a 4th Amendment issue.

Schmerber, cont.
  • Searches involving intrusions beyond body surface
    require search warrant, unless the bodily
    evidence sought is of type likely to deteriorate
  • Court held police complied with Fourth Amendment
    in taking blood they had probable cause because
    blood-alcohol levels metabolize rapidly, police
    faced with exigent circumstance that did not
    allow time for search warrant procedure was
    performed in reasonable manner by trained

Bodily Evidence, cont.
  • Four factors must be satisfied to determine if
    procedure was performed in a reasonable manner
  • Governments need for evidence must outweigh
    suspects interest in privacy or bodily integrity
    that procedure will invade,
  • Clear indication that procedure will produce
    needed evidence,
  • Police must obtain search warrant before
    performing procedure unless immediate danger
    evidence will be destroyed,
  • Procedure to recover must be reasonable and
    performed in reasonable manner.

  • Justification for procedure Governments burden
    to demonstrate need for evidence increases as the
    procedure becomes more invasive. Thus, stronger
    showing of need is necessary to compel drawing
    blood than for procedures that swab under
    fingernails or pluck stand of hair.

  • Manner Procedures involving bodily evidence must
    be performed in a reasonable manner, with due
    regard for privacy and health concerns of
    suspect. Qualified personnel must generally be
    used for procedures that involve intrusions below
    the bodys surface other than emergency seizure
    of objects from suspects mouth

  • Need for warrant Unless emergency threatens
    destruction of evidence, courts require search
    warrant is usually required for procedures that
    1) involves saliva, urine, semen, pubic hair, or
    other bodily fluids 2) penetrates body surface
    3) requires examination of rectal or genital
    cavities 4) involves physical pain or severe
    discomfort 5) is dangerous to health or 6) is
    degrading or humilating

  • 1) Testing for intoxication warrants are not
    required before drawing blood to test for
  • 2) Swabbing for residue no warrant required for
    residue left on skin, since it can deteriorate
  • 3) Retrieving swallowed evidence If police have
    probable cause that suspect placed evidence in
    mouth, they may use reasonable force to prevent
    him from swallowing includes reaching into
    mouth. Courts are split on use of chokeholds.

  • 4) Strip searches reasonable suspicion
  • 5) Body cavity searches probable cause