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Criminal Procedure
Villanova University School of Law
Poulin, Anne Bowen

Short Sheet: 5th Amendment Violations
1.      Was the statement made voluntary? (Due Process Analysis)
·        Was there an absence of  police coercion (police overreaching)?
                                                              i.      If no, statement inadmissible
                                                           ii.      If yes, continue
2.      Was the statement given while in custody?
·        Was there restraint as associated w/ arrest (in light of circumstances)?
·        No freedom to leave (reasonable person believe they’re in custody)
                                                              i.      If no, Miranda doesn’t block admissibility – only applies in custody
                                                           ii.      If yes, continue
3.      Was the statement product of interrogation?
·        Were words or actions by police intended to, or reasonably likely to, elicit an incriminating response from D?
                                                              i.      If no, Miranda doesn’t block admissibility – no interrogation
                                                           ii.      If yes, continue
4.      Was the questioning part of the public safety exception?
·        Was the questioning “Reasonably prompted by a concern for public safety?”
                                                              i.      If yes, Miranda warnings not required
                                                           ii.      If no, continue – Miranda  warnings were required!
5.      Were the warnings properly given?
·        Were the 4 rights given (silence, incrimination, attorney, appointment)?
                                                              i.      If no, skip to 7
                                                           ii.      If yes, continue
6.      Did D properly waive his Miranda rights?
·        Knowing, intelligent, voluntary
·        Express (signed writing with no coercion to do so); Implied (conduct suggests; volunteered – totality of circumstances)
                                                              i.      If yes, D’s statements admissible
                                                           ii.      If no, continue – D not properly Mirandized
7.      Is the prosecution trying to use the statements?
·        If no, no 5th Amendment issue
·        If yes, D’s statement inadmissible because of failure to give warnings or obtain valid waiver
*Also consider whether D invoked right of silence or counsel*
·        If right to counsel invoked (unambiguous/unequivocal request), questioning must stop until attorney present. Only way waiver is given is if suspect initiates
·        If right to silence invo

th Amendment right does not attach unless the suspect is in custody; the 6th Amendment is not so limited (e.g., it applies when the accused has been released from custody on bail or on his own recognizance)
(3) Nature of offense – 6th Amendment right is offense-specific; the 5th Amendment right to counsel applies to any and all offenses, once custodial interrogation commences.
(4) Focus of inquiry – 5th Amendment right to counsel applies when the custodial suspect is “interrogated,” and focuses on the perceptions of the suspect (whether he believes he is in custody); 6th Amendment prohibits “deliberate elicitation,” and focuses on the intentions of the police.
(5) Questioning by undercover agent or informant – 5th Amendment right to counsel is not invoked when the suspect is questioned by an informant or undercover officer; the 6th Amendment applies to deliberate elicitation by overt and covert government agents.
            (6) Fruit-of-the-poisonous-tree doctrine – The doctrine applies to 6th Amendment violations; the doctrine does not apply to violations of the 5th Amendment right to counsel.