SELF-INCRIMINATION

“No person…shall be compelled in any criminal case to be a witness against himself[.]”

The 5th Amendment

“I plead the Fifth!”

Self-Incrimination Checklist:

Self-Incrimination inside the courtroom

or

Self-Incrimination outside of the courtroom

Self-Incrimination

INSIDE THE COURTROOM

1. No person (a witness or the accused)

2. Shall be compelled (cannot be forced to testify)

3. In any criminal case (applies to criminal prosecutions or where could result in future criminal charges)

4. To be a witness (applies to testimonial or communicative evidence only)

5. Against himself (cannot assert someone else’s right against self-incrimination)

Outside the CourtroomRequirement #1:

CUSTODY

Was the suspect under arrest or its functional equivalent? (Would a reasonable person in the suspect’s position not feel free to leave?)

Self-Incrimination

OUTSIDE OF THE COURTROOM

Was the suspect in custody?Was the suspect interrogated?Did police inform the suspect of his

Miranda rights prior to interrogation?Were any improperly obtained statements

suppressed at trial?

Checklist:

Outside the CourtroomRequirement #2:

INTERROGATIONDid police directly question the suspect or engage in some tactic that was designed to elicit an incriminating response?

“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Miranda v. Arizona, 384 U.S. 436 (1966).

Outside the CourtroomRequirement #3:

MIRANDA RIGHTS

“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”

Miranda v. Arizona, 384 U.S. 436 (1966).

Outside the CourtroomRequirement #3:

MIRANDA RIGHTS

If YES: If NO:

• Did the suspect invoke his right to remain silent

or• Did the suspect

voluntarily, knowingly, and intelligently waive his rights?

• Did a public safety exception temporarily excuse police from giving Miranda prior to interrogation

or• Did police unintentionally

omit Miranda or give incomplete or inaccurate warnings?

Did police properly inform a suspect of Miranda rights?

Outside the CourtroomRequirement #4:

REMEDYWere any improperly obtained statements suppressed from evidence by the Exclusionary Rule?

• Was there a mere-Miranda violationor

• Was the suspect’s statement involuntary based on due process standards? Mincey v. Arizona, 437 U.S. 385 (1978).