Constitutional Law

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Constitutional Law

• Chapter 7
• Compulsory Self-Incrimination

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5th Amendment

• No person shall be compelled in any criminal case
  to be a witness against himself
• 5th Amendment 1791

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Objectives

• The difference between testimonial and physical
  evidence
• The 3 prerequisites for application of the 5th
  Amendment privilege against self-incrimination
  compulsion, testimony, and self-incrimination
• The functioning of the 5th amendment in judicial
  proceedingsincluding trials, grand jury
  hearings, and administrative hearings

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Objectives Cont..

• Abrogation of the 5th Amendment privilege against
  self-incrimination through grants of immunity
• Absence of the need of the Miranda warning before
  compelling participation in procedures such as
  fingerprinting, photographing, participation in
  line-ups, taking of blood samples etc, etc.

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Objectives Cont..

• The difference between appearance and bodily
  evidence
• 4th amendment requirements for securing
  appearance evidence and for compelling suspects
  to give bodily evidence

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Testimonial vs Physical Evidence

• Testimonial Evidence involves communication of
  thoughts of information in response to questions
  or interrogations
• Physical Evidence includes all evidence other
  than testimony
• A suspects body can be two different kinds of
  evidence (appearance and bodily evidence)
• Appearance evidence refers to evidence obtained
  for bodily characteristics such as voice,
  physical appearance, handwriting, and fingerprints

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Testimonial Evidence Cont..

• Bodily evidence refers to physical evidence
  obtained from a suspects body by
• Searching parts not normally exposed to the
  public
• Seizing biological materials
• Seizing foreign substances on or inside the
  suspects body

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5th Amendment Protection Against Testimonial
Self-Incrimination

• 5th Amendment is violated if a suspect is
  compelled to disclose testimonial evidence that
  can later be used against a person in court
• The self-Incrimination clause applied both inside
  and outside the court room in all proceedings,
  civil and criminal, formal or informal

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Two levels of protection by the 5th Amend

• Suspects enjoy the absolute right to remain
  silent during custodial interrogations and at
  their trial

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Level of Protection Cont..

• In all other situations, citizens can be
  compelled to appear and testify, but have the
  absolute privilege to answer specific questions
  that may incriminate them

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Prerequisites for 5th Amendment Violations

• Testimony- The 5th only applies to testimony and
  nothing else
• Communication may be oral on inferred from the
  persons conduct
• Handwriting and voice characteristics are forms
  of physical evidence and do not violate the 5th
  amendment
• The 5th does not protect the accused from
  producing self-incriminating physical evidence

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Prerequisites for 5th Amendment Violations Cont..

• Self-Incriminating physical evidence evidence
  takes the form of fingerprints, handwriting, hair
  samples, voice exemplars, to participate in
  line-ups, demonstrate speech and other physical
  characteristics, to submit to a blood alcohol,
  Breathalyzer, or urine tests, etc.

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Prerequisites Cont.

• Compulsion- to make someone disclose
  involuntarily any information, triggers 5th
  amendment protection
• Compulsion is present if the government demands
  disclosure with the threat of a sanction
• Physical retaliation, job loss, or actual
  threatened harm of a serious nature

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Prerequisites Cont..

• Self-Incrimination refers to information that is
  compelled from someone whereas the information
  can expose the person to a criminal prosecution
• Suspects in custody cannot invoke protection in
  response to booking questions such as name,
  address, age, social security, date of birth,
  height, weight, eye color etc..

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Prerequisites Cont..

• Suspects are compelled to answer questions about
  crimes they have already been tried
• The Government cannot prosecute them again so
  there is no protection
• Persons granted immunity cannot invoke the 5th

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Only a prosecutor has the right to grant
immunity. If police promise immunity to elicit
information from a suspect, the suspects
statement will be considered involuntary and
will be suppressed
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Quick Test

• Tell me if the 5th is violated in any of the
  following procedures and why or why not
• Seizing a suspects personal diary and private
  papers under a search warrant
• Using a subpoena duces tecum to compel the target
  of a grand jury to produce his/her personal diary

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Test Cont

• Requiring a person under arrest to answer booking
  questions
• Requiring a person under arrest to appear in a
  line up
• Requiring a person to appear in a line up and
  state two phrases This is a hold up and Put
  the money in the bag
• Requiring a suspect to take the witness stand and
  repeat words of an incriminating phone
  conversation

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Rules for Invoking or Waiving the 5th

• Invoking the 5th
• Criminals have the right to remain silent at
  their criminal trial
• They have a right not to take the stand
• The prosecution may not call on the defendant as
  a witness
• Witnesses do not have the right to remain silent
  and must take the stand but can invoke the
  privilege if asked incriminating questions

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Rules for Invoking or Waiving the 5th Cont..

• Waiving the privilege
• Criminal defendants waive the privilege by
  voluntarily taking the stand
• Criminals thereby waive the right to refuse to
  answer questions during cross-examination that
  are reasonable and related to the scope of the
  precious testimony
• Witnesses waive the privilege when they
  voluntarily answer incriminating questions

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Adverse Consequences from Exercising the 5th

• If a defendant chooses not to testify, the 5th
  prohibits the trial judge or prosecutor from
  making any adverse comment during the trial
• Witnesses can be compelled to testify, however if
  they become the focus of the questioning and the
  question is incriminating, they can refuse to
  answer it and are protected from any adverse
  punishment
• Police departments may or may not impose
  sanctions on an officer for refusing answer
  incriminating questions during an investigation

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Self-Reporting Laws

• The government has several reporting requirements
  by its citizens such as voter registration,
  income tax, or census
• Citizens involved in criminal activity are not
  excused from complying with report laws such as
  IRS Code, occupational tax laws etc
• Citizens can refuse to comply with government
  reporting laws that serve no purpose

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4th Amendment Protection Bodily
Self-Incrimination

• The 5th only protects against self-incriminating
  testimony and not evidence that is derived from
  the suspects body rather than his/her own mind.
• This type evidence is called physical evidence
  and comes under the protection of the 4th
  amendment

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4th Amendment Protection Bodily
Self-Incrimination Cont..

• The 5th does not protect the accused from
• Being compelled to produce physical evidence
• Fingerprints, photographs, physical measurement,
  handwriting samples, voice exemplars, to furnish
  blood or urine samples, to exhibit scars, marks
  tattoos

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4th Amendment Protection Bodily
Self-Incrimination Cont..

• To participate in a line up
• Stand, talk, walk, speak, write, put on articles
  of clothing for purposed of identification
• These procedures are all physical characteristics

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4th Amendment Protection Bodily
Self-Incrimination Cont..

• Compelled production of evidence is regulated by
  the Fourth Amendment
• Physical Evidence taken from a suspects body is
  divided into 2 categories
• Appearance evidence
• Bodily evidence

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Appearance Evidence

• Is all evidence obtained using the following
  procedures
• Station house line-ups
• Show up Identifications
• Photographs
• Fingerprints and Body measurements
• Voice and Handwriting Exemplars
• Field Sobriety Tests

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Appearance Procedures

• All appearance procedures are permissible when
  police have grounds for an arrest
• Police may also transport a suspect short
  distances to a crime scene or the location of a
  witness
• Prosecutors can apply for a warrant like order to
  compel a suspect to appear for specified
  appearance evidence procedures

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Bodily Evidence

• Refers to evidence derived from a suspects body
  by
• Searching areas not normally exposed to the
  public
• Penetrating the body surface
• Removing biological or foreign substances
• Bodily Evidence includes evidence derived from
  the following procedures

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Bodily Evidence Cont..

• Removing incriminating evidence from the bodys
  surface (wax test for gun powder on hands)
• Taking x-rays
• Taking body tissue and fluids
• Performing strip searches and body cavity
  searches
• Reaching into a suspects mouth, pumping his
  stomach to recover evidence

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Bodily Evidence Cont..

• With bodily evidence, citizens have a reasonable
  expectation of privacy which could trigger 4th
  amendment protection
• Bodily evidence procedures must be performed in a
  reasonable manner
• 4 factors be satisfied

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Bodily Evidence Cont..

• The governments need must outweigh the suspects
  interest in privacy
• There must be clear indication that the procedure
  will produce needed evidence
• Police must get a warrant 1st unless there is a
  good chance the evidence will be lost
• The procedure used to recover the evidence must
  be reasonable and performed in a reasonable manner

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Various Procedures

• Testing for intoxication- Warrants are not
  required because blood-alcohol deteriorates
  rapidly. Procedure is justified when making an
  arrest for an intoxicated related offense
• Swabbing the skin- No warrant needed if police
  believe suspect committed a crime that would
  leave incriminating residue. Swabbing can be
  performed by police personnel

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Various Procedures

• Retrieving Swallowed Evidence- Police can use
  reasonable force to retrieve evidence from a
  suspects mouth or prevent him/her from swallowing
  it
• Reaching into the mouth is ok but the choke hold
  is illegal
• Strip searches- Can be conducted after lawful
  arrest

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Various Procedures

• strip Search Cont.. If police believe the
  suspect has drugs, guns, or contraband secreted
  on his person
• Strip searches should be conducted by officers of
  the same sex in a private location
• Body Cavity Searches- Are Highly intrusive

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Various Procedures Cont..

• Body Cavity Searches Cont.. - Police must have
  probable cause to believe the suspect has
  secreted evidence into a body cavity
• The procedure must be performed by qualified
  medical personnel
• Usually a warrant is required for a body cavity
  search

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The End