CRIMINAL PROCEDURE ESSAY QUESTION #6

CRIMINAL PROCEDURE ESSAY QUESTION #6 You are in a legal debate with the topic being the Fifth Amendment Right Against SelfIncrimination. How would you...
Author: Brenda Marshall
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CRIMINAL PROCEDURE ESSAY QUESTION #6 You are in a legal debate with the topic being the Fifth Amendment Right Against SelfIncrimination. How would you respond to the following scenarios:

1. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant if Defendant had robbed the bank, and Defendant admitted to robbing the bank. No Miranda Warnings were given. 2. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. Then, Defendant admitted to robbing the bank. No Miranda Warnings were given. 3. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. When they entered the Station House, another Police Officer yelled out towards Defendant, “You are the person who robbed the bank.” Defendant admitted to robbing the bank. No Miranda Warnings were given. 4. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. When they entered the Station House, Police Officer read Miranda Rights to Defendant. Defendant then admitted to robbing the bank. 5. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. When they entered the Station House, a witness to the robbery yelled out towards Defendant, “You are the person who robbed the bank.” Defendant admitted to robbing the bank. No Miranda Warnings were given.

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1. RIGHT AGAINST SELF-INCRIMINATION. 5th AMENDMENT. The Fifth Amendment provides that a person may not be compelled to be a witness against themselves. Here, defendant admitted to robbing the bank, and will seek to have that statement excluded. ATTACHES WHEN: CUSTODY. Under the totality of the circumstances, defendant is not free to leave. A suspect is under arrest when an officer takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intent to arrest that person. Absent a formal arrest, the question is whether a reasonable person in the suspect's position would have believed that he was under custodial arrest, and was not free to leave. Here, the police officer initiated a Terry stop, which requires only reasonable suspicion. The police officer rightfully asked a couple of questions, but at no time are there indications that an arrest was made. INTERROGATION. Words or actions meant to elicit an incriminating response. The police officer was asking basic questions, and was not interrogating the suspect. GOVERNMENTAL OFFICIAL. A confession obtained through an interrogation by undercover police or a paid informant does not fall under Miranda protections because there is no police coercion if the suspect does not know they are being questioned by the police. The police officer is a governmental official. INCRIMINATING COMMENT. Once the right against self-incrimination attaches, defendant will have standing to assert that any incriminating comments they make should be excluded from testimonial evidence. The following are types of non-testimonial evidence, which does not fall under the right against self-incrimination: physical or real evidence, such as identification procedures related to handwriting, voice exemplars, fingerprints, DNA samples, hair samples and dental impressions. The suspect admitted to robbing the bank, which is an incriminating comment.

VOLUNTARY STATEMENTS. Voluntary statements are not covered under the 5th Amendment. Here, defendant was not in custody, nor did the police officer interrogate defendant. Therefore, defendant's Fifth Amendment right against self-incrimination had not attached, and defendant would not be able to assert protection under the 5th Amendment. The statement by defendant was therefore a voluntary statement.

MIRANDA. Before an interrogation begins, police must advise a suspect that they have the right to remain silent, that anything they say may be used against them, that they have a right to have an attorney present before and during questioning, and that they have the right to a free attorney appointed to represent them if they cannot afford an attorney. In this instance, Miranda COPYRIGHT 2009 THE LAW PROFESSOR™

rights were not read, but that is not important to the analysis, because defendant's 5th Amendment right against self-incrimination had not attached. WAIVER. A waiver of Miranda must be knowing, voluntary and intelligent. In order to show that the waiver was voluntary, the standard is that there was no police coercion under a totality of the circumstances test. For a waiver to be knowing and intelligent, the suspect must have a basic understanding of the rights and their consequences. Here, there was no need for a waiver, because defendant's Miranda rights had not been read to defendant. RIGHT TO REMAIN SILENT. Where a defendant asserts his right to remain silent, all interrogation must immediately stop and the police may not resume interrogation, and may not resume interrogation about any offense charged or uncharged unless the police have scrupulously honored the defendant's assertion, and defendant reinitiates contact for purposes of interrogation and police obtain a valid waiver before resuming the interrogation, or defendant's attorney is present. In determining whether the police scrupulously honored the assertion, courts apply a totality of the circumstances test. Here, the situation took place before reading Miranda rights.

EXCLUSIONARY RULE. Defendant will seek to have their incriminating statement excluded from trial court evidence. However, since defendant's statement was a voluntary statement, it will not fall under the protection of the 5th Amendment, and the evidence will not be excluded.

2. RIGHT AGAINST SELF-INCRIMINATION. 5th AMENDMENT. ATTACHES WHEN: CUSTODY. When asked to come to the station house, defendant was not free to leave. Therefore, custody. INTERROGATION. No. GOVERNMENTAL OFFICIAL. Yes. INCRIMINATING COMMENT. Yes.

VOLUNTARY STATEMENTS. Yes.

MIRANDA. Not read, but not needed. WAIVER.

Not necessary.

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EXCLUSIONARY RULE. This is a voluntary statement.

3. RIGHT AGAINST SELF-INCRIMINATION. 5th AMENDMENT. ATTACHES WHEN: CUSTODY. Yes, at station house there would be custody. INTERROGATION. “You are the person who robbed the bank,” statement, is meant to elicit an incriminating response. Therefore, there is an interrogation. GOVERNMENTAL OFFICIAL. Other Police Officer at station house is a governmental official. INCRIMINATING COMMENT. Yes.

VOLUNTARY STATEMENTS. No.

MIRANDA. None given. WAIVER. None waived. EXCLUSIONARY RULE. This statement will be excluded.

4. RIGHT AGAINST SELF-INCRIMINATION. 5th AMENDMENT. ATTACHES WHEN: CUSTODY. Yes. INTERROGATION. No. GOVERNMENTAL OFFICIAL. Yes. INCRIMINATING COMMENT. Yes. COPYRIGHT 2009 THE LAW PROFESSOR™

VOLUNTARY STATEMENTS. Yes.

MIRANDA. Yes. WAIVER. No. EXCLUSIONARY RULE. Not excluded.

Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. When they entered the Station House, a witness to the robbery yelled out towards Defendant, “You are the person who robbed the bank.” Defendant admitted to robbing the bank. No Miranda Warnings were given. 5. RIGHT AGAINST SELF-INCRIMINATION. 5th AMENDMENT. ATTACHES WHEN: CUSTODY. Yes. INTERROGATION. “You are the person who robbed the bank,” is a statement meant to elicit an incriminating response. GOVERNMENTAL OFFICIAL. The person who made the statement cited above, was not a governmental official, but rather a private person who was a witness to the bank robbery. INCRIMINATING COMMENT. Yes.

VOLUNTARY STATEMENTS. Yes.

MIRANDA. No. WAIVER. No. EXCLUSIONARY RULE. Not excluded.

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