Speaker 1: How do you analyze police interrogations under the Fifth Amendment and Miranda v. Arizona on a criminal procedure essay? Well, step one, we really have to talk about the Fifth Amendment and how it relates to police interrogations. From there, we can move on to Miranda v. Arizona and how it all plays out on a criminal procedure essay. But step one, what does the Fifth Amendment tell us about police interrogations? Well, the Fifth Amendment protects against government compulsion of involuntary statements. In other words, the police can't force a suspect to make an involuntary confession. For example, if a police officer is holding a gun to a suspect's head and demanding that he answer questions, any statements obtained as a result of that interrogation are going to be considered involuntary in a violation of the Fifth Amendment, which means they're going to be inadmissible in court. Also, any evidence obtained as a result of those involuntary statements is going to be considered fruit of the poisonous tree and is also going to be inadmissible. So if the suspect confesses to committing a murder and he tells the police officer where he's hidden the murder weapon and that police officer goes out and finds the murder weapon, not only are the confessions themselves inadmissible in court, but also that murder weapon is going to be considered fruit of the poisonous tree and is also going to be inadmissible. The reason I bring this all up is because, notably, this is going to be different than a Miranda violation. We treat a Fifth Amendment violation very differently than a Miranda violation, but we'll come back to that later when we move on to Miranda. Okay, so what is, though, an involuntary statement? For Fifth Amendment purposes, obviously, any time a police officer is using force, like holding a gun to someone's head, we can all see how that's involuntary. But the real definition there that we're going to be looking for is when the police use tactics that overbear a suspect's free will. It leaves the suspect no other alternative than to make statements or confess. This is a very high threshold. There's lots of factors here that you can think about, but the main idea is that it's a totality of the circumstances analysis, very fact-specific. This is going to be a good opportunity on a criminal procedure essay for you to really dive into the fact pattern. Look for anything that might be overbearing a suspect's will if you're in a Fifth Amendment voluntariness analysis. Some factors, though, that you can look out for would be what is the length of time of the interrogation. Obviously, a 30-minute interrogation is going to be treated very differently than a 20-hour interrogation. At some point, the length of time of an interrogation can become long enough where it's going to start to overbear a suspect's free will. You go 20, 30, whatever hours with no breaks, no restroom breaks, no food breaks, no water breaks. At some point, the length of time is going to be enough that that's going to start to become overbearing on someone's free will. The location of the interrogation—is this happening in an interrogation room, around the middle of the woods, nowhere? Is it happening in a Starbucks? Where is the interrogation happening? That would be another factor to think about. Also, the actual tactics being used. The police are allowed to use deceit and trickery. This is the whole idea of a lie detector test, for instance. We all know that the results of a lie detector are inadmissible in court because lie detectors are largely inaccurate, but the police may still want to use a lie detector to try to elicit a truthful response from a suspect. The suspect doesn't know that the lie detector can or can't be used in court. Things like this—psychological tricks and tactics—can be used by the police to try to elicit confessions, as long as they're not overbearing a suspect's free will. Things like force or threat of force are the obvious indicators. Or anything involving physical pain. If someone's in the hospital and they have gunshot wounds and they're in critical condition and the police come in, that's going to be indicative of involuntariness. Again, all the factors you want to consider. Another big one would be the mental or emotional condition of the suspect. Does this suspect have any mental or emotional conditions that might make them more susceptible to police coercion? The age of the suspect. All of this stuff is a totality of the circumstances analysis, and like I said in the beginning, this is why a Fifth Amendment analysis is going to be very rich in the facts. It's going to be very fact-specific. It's a good opportunity for you to go in to your essay and really use a lot of the facts. But remember, the threshold is high. We're looking for overbearing a suspect's free will. Police are going to have to do a lot of things to rise to that level. It can't just be basic deceit or tricks or lying to a suspect. It has to actually overbear their free will. That's going to be a Fifth Amendment violation for an involuntary statement. And remember, that statement is now inadmissible. Any evidence obtained from that statement is inadmissible. Coming from this idea of involuntary statements from the Fifth Amendment, we get this landmark decision from the United States Supreme Court in Miranda v. Arizona, where this idea of the custodial interrogation comes up. So the idea here is, and we could talk all day about Miranda v. Arizona, but to keep it short, the main idea is the court there is saying that custodial interrogations, a situation where you have a suspect in police custody and you're subjecting them to interrogation, this whole concept is inherently coercive. It's likely to elicit involuntary statements just by the nature of the custodial interrogation because the court is basically saying it's a very intimidating situation. You're locked in usually a dim-lit interrogation room. There's police there. You don't feel like you have many alternatives but to talk. So because of this inherent level of coercion, we get this idea of Miranda rights, where the police, if they're going to conduct a custodial interrogation, need to tell the suspect what his Fifth Amendment rights are, and this is usually referred to as your Miranda rights, right? And obviously we all know what these are. You've heard them a million times in TV and movies. The right to remain silent. The right to have an attorney present during questioning. The right to have an attorney appointed for you if you cannot afford one. And informing the suspect that any statements that they make can and will be used against them in a court of law. Those are usually the four requirements that you're going to have to inform a suspect before you begin a custodial interrogation. So if the police conduct a custodial interrogation without informing a suspect of his Miranda rights, that is a violation of Miranda v. Arizona, right? So anytime we have a custodial interrogation, you immediately in your head want to be thinking, was this suspect given his Miranda rights? And on top of that, so even if a suspect knowingly and voluntarily waives his Miranda rights, so a suspect is sitting down for a custodial interrogation and the police say, here are your Miranda rights. They lay them all out and they ask if the suspect wishes to talk and the suspect says, yeah, absolutely. I don't care. I'm voluntarily waiving those rights. I don't need those. I want to talk to you. Okay, well in that situation, as the interrogation goes, the suspect can still affirmatively invoke either his right to remain silent or his right to have counsel present. These are both his Fifth Amendment rights. There's a Sixth Amendment right to counsel. We'll talk about that later. Right now we're talking about the Fifth Amendment right to remain silent and the Fifth Amendment right to counsel. And the key here is the suspect has to affirmatively invoke these rights. If the suspect is just sitting there during a custodial interrogation remaining silent, that is not an invocation of his Fifth Amendment right to remain silent. But if at any point during the interrogation, the suspect says, hey, I'd like to invoke my right to remain silent or hey, I want my attorney present from this point forward, the police have to immediately cease the interrogation. If they continue the interrogation after an affirmative invocation of the right to remain silent or the right to have their attorney present during questioning, that's also going to be a Miranda violation. And you can see this if you just go on YouTube and look at police interrogation videos. Watch what happens when a suspect says he'd like to have his attorney present. The suspect will be going along. There'll be a lot of questioning going back and forth. Suspect says, hey, you know what, I think I'd like to have my attorney here. Watch what the police do because it's usually on tape. The police know it's on tape, so they will immediately stop because they know. They know Miranda. And you can see this happen very plainly. Immediately the police will start packing up their stuff and just walking out the door because they know once that invocation happens, an affirmative invocation of a fifth or fifth amendment right to remain silent or a fifth amendment right to counsel, they know that they have to stop. Now there's going to be some exceptions there. Generally it's a two-week rule. If somebody affirmatively invokes the right to counsel, two weeks later the police can re-Miranda-ize the suspect and go through the process again. So you can kind of think of it as a two-week timer. Also, if the suspect re-initiates the conversation, so the suspect affirmatively invokes his right to remain silent or affirmatively invokes his right to have an attorney present, but then re-initiates the questioning himself, that won't be a Miranda violation at that point. Just some things to look out for there. But the main idea of a Miranda violation is, number one, we need a custodial interrogation where the police fail to inform the suspect of his rights, or we have a custodial interrogation the suspect knowingly involuntarily waives his rights, but then later during the interrogation affirmatively invokes them and the police do not cease the interrogation. That is also a Miranda violation. So that's the two main ways you can have a Miranda violation. And now the key, the effect of a Miranda violation, remember I said it's a little bit different than the Fifth Amendment. If you remember, under the Fifth Amendment, we said that a violation there, if you have an involuntary statement under the Fifth Amendment, that statement is inadmissible and any evidence obtained as a result of that statement, like the murder weapon, would also be inadmissible as fruit of the poisonous tree. Notably, under a Miranda violation, if we have a Miranda violation, the evidence obtained as a result of that violation is going to be admissible. The fruit of the poisonous tree doctrine does not apply to Miranda violations. Also notably, if you have a Miranda violation and statements obtained in violation of Miranda, those statements could still be used for impeachment purposes. You could bring those statements in in court to impeach the witness. Now they can't be used for substantive purposes in the prosecution's case-in-chief, but you can them to impeach the witness. So a little bit different there. There's still ways, even if you have a Miranda violation, that those statements can come into court for impeachment purposes and evidence obtained as a result of those statements. Remember our murder weapon example. If somebody, if there's a Miranda violation and the suspect tells the police after that Miranda violation where he's hidden a murder weapon and they go out and find that murder weapon, so long as the statement was voluntary, we don't have a Fifth Amendment violation, that murder weapon is admissible in court. So you always want to remember the effect. We'll talk about exclusionary rules in more detail in a later video, but worth noting now that a Fifth Amendment violation is a death blow to the prosecution's case. Anything obtained from that Fifth Amendment violation is basically out, whereas a Miranda violation isn't as serious. There's still ways you can recover from that if you're the prosecution. But let's think about this in terms now of a criminal procedure essay. I feel like we've overviewed the subjects here enough to really talk about what to look for on a criminal procedure essay. So the first thing you want to do as you're reading your criminal procedure essay is look for statements being made to the police. If there are any statements on a criminal procedure essay being made to the police, you immediately want to draw this timeline that I have on the board, and you want to put those statements in the appropriate place on the timeline. So what's typically going to happen, you have three key events you want to look out for. We have number one, when the suspect is taken into custody. We have number two, when the custodial interrogation begins. And we have number three, when the suspect is charged with a crime. So let's define these events a little bit so you know how to place the statements correctly. When is a suspect taken into custody? Remember we talked about this a little bit in our very first video. We were talking about the Fourth Amendment and seizures, government seizures of a person. Remember, any time that we have a government encounter with a person where a reasonable person would not feel free to terminate the encounter, we said that's a government seizure of a person. And remember we said that an arrest was a little bit different than a Terry stop. It was a more substantial seizure, and generally there we have a suspect actually being taken into custody. Well this point right here, we're talking about a more substantial seizure than just a Terry stop, right? If you don't remember Terry stop and lawful arrest, you can go back and watch that first video. But the main idea here is where we have a seizure of a person is going to be where a reasonable person would not feel free to terminate the encounter, right? That's the minimum threshold for when a suspect is taken into custody, but remember it's a little bit more than that when we're actually talking about making an arrest and taking a suspect into custody. We're looking for a higher degree of restriction of movement. You should think about a suspect being handcuffed and put into a police cruiser, right? At that point, that's a more substantial restriction of movement that really rises to the level of being taken into police custody, right? If a police officer just pulls over a car for a minor traffic violation on the side of the street, as that car is pulling over, that's not being taken into custody at that point. That's more of a Terry stop. It has to be a more substantial seizure than just pulling someone over or a police officer talking to someone. We're looking for the formality of an arrest, a higher degree of restriction of movement. Think about somebody getting handcuffed and placed into a squad car. That's generally the place on a criminal procedure essay where you can mark, okay, suspect has now been taken into custody. They're in the back of the squad car. They're handcuffed. They're in custody, right? They're not free to terminate the encounter. We know that's a seizure, but this is more substantial than that. That's handcuffed. It's a higher degree of restriction of movement. We know they're taken into custody, okay? From there, the next key event we want to look out for, okay, we have a suspect in custody. When does the interrogation begin? And often when students hear the word custodial interrogation, they immediately envision a police officer across a suspect in a dim-lit room shining a light in his face, right? And that is a custodial interrogation, but that's not the only type of custodial interrogation. All that we need here for a custodial interrogation is, number one, that the suspect has been taken into custody, and number two, that the police are engaged in conduct that they know is likely or should know is likely to elicit an incriminating response, okay? So the typical example you can see here would be the police, like I said, police arrest somebody, they put them in the back of a squad car, and as they're driving to the police station to conduct a formal interrogation, they start asking the suspect some questions. Well, if those questions are likely to elicit an incriminating response, then that custodial interrogation has begun in the squad car. Now, if they're just asking questions like, how are you doing? How's your day been going? That's not likely to elicit incriminating responses, but if they start asking questions about the crime, well at that point, even though it's not happening in an interrogation room, it's happening in the back of a squad car, doesn't matter, right? There's no location requirement for a custodial interrogation. The test is whether the police knew or should have known that their conduct was likely to elicit an incriminating response, okay? So that's the second thing we want to mark. When does the custodial interrogation begin? When do the police engage in conduct that they knew or should have known was likely to elicit an incriminating response? And then the final one we want to mark, our last event on our criminal procedure timeline, is really easy, right? When is the suspect charged with the crime? Once a custodial interrogation begins, one of two things has to happen. Either the suspect is going to be released, or the suspect is going to be charged with the crime. You can't just hold a suspect in perpetuity, right? You either have to let him go, or you have to charge them with a crime. Once a suspect is charged with a crime, Sixth Amendment attaches, right? We have a Sixth Amendment right to counsel that's going to automatically attach from that point forward. And we're going to talk about that way more in our next video, but worth noting now the difference between your Fifth Amendment and Sixth Amendment right to counsel, right? Fifth Amendment, as you're undergoing a custodial interrogation, you can affirmatively invoke your Fifth Amendment to have your counsel present. The Sixth Amendment right to counsel automatically attaches from the time you're charged with the crime moving forward, right? That's the idea that at a trial, you're allowed your you at a trial under the Sixth Amendment, you're guaranteed right to counsel if you want it, right? You can waive that, but it automatically attaches. The key to recognize here, Sixth Amendment right to counsel automatically attaches. Fifth Amendment right to counsel has to be affirmatively invoked by the suspect being questioned, okay? But this is the three things. So as you're reading your criminal procedure fact pattern and you see statements made to police, you want to draw these three events on a timeline, and you want to literally place the statements where they belong on the timeline. Because you know once a custodial interrogation begins, at this moment, the reason I have this blue star written here is because from this point forward, we're worried about Miranda, right? Once that custodial interrogation happens, the police have to inform right here at this moment where that blue star is, the police have to inform the suspect of his Miranda rights. If they fail to do so, any statements obtained in this area is a violation of Miranda, right? So as you can see, this is color-coded, this blue section, the question is going to be, is this statement obtained in violation of Miranda? But that's only at issue once that custodial interrogation begins. So here and here, what we typically have are volunteered statements, statements that are just blurted out. You can imagine a suspect calls the police station at this point of the timeline, just calls in the police station and confesses to a crime. Well, Miranda rights were never read, but Miranda's not triggered at this point of the timeline. Doesn't matter, right? Suspect's not in custody, there's no interrogation, suspect's just calling the police and confessing. We're not worried about Miranda at all in that situation. And even if the suspect is taken into custody, imagine the suspect's in the back of the squad car, handcuffed, he's in custody, but no interrogation has begun, right? The police haven't said anything and the suspect just starts blurting out a confession. Well, Miranda is not triggered. All that we're worried about at that point in the timeline is whether the statement was voluntary, Fifth Amendment, right? If he's got a gun to his head or not. Otherwise, we don't care about Miranda. Miranda only comes up when we have that custodial interrogation. And remember, from that point, when the custodial interrogation happens, whether it's in the squad car or at the police station, police have to inform the suspect of his Miranda rights. If they don't, we have a violation of Miranda. We talked about the effect of that violation, right? Those statements are going to be inadmissible for substantive purposes, could come in to impeach the witness, and evidence obtained as a result of those statements could come in. But again, the statements themselves are going to be inadmissible for substantive purposes. But this is how it all plays out. This is what you want to do on your criminal procedure essay. You're going to want to draw up this timeline. And in our next video, we'll talk about what happens from this point forward, right? Once the suspect is actually charged with a crime, we'll talk about what happens there with the Sixth Amendment. And then we can move on to the exclusionary rules and go into more detail. But I hope this was helpful. This is how you should look at Fifth Amendment and Miranda analysis on a criminal procedure essay. But until then, guys, I'll see you at our next video.