YOUR RIGHTS

YOUR RIGHTS AND THE FIFTH AMENDMENT

The Fifth Amendment of the United States Constitution reads that no person "shall be compelled in any criminal case to be a witness against himself". This is called the Protection Against Self–Incrimination.

Historically, the Fifth Amendment applied federally but did not apply to the States; however, after the Supreme Court expressly applied the self-incrimination clause to the States, the rule applied to every American.

The Police in the United States have historically been tempted to use physical intimidation to obtain confessions; however, the United States Supreme Court has consistently criticized this position.

HISTORICAL DEVELOPMENT:

In Brown vs. Mississipi 297 US 278 (1936), the Supreme Court made it clear that torturing a prisoner to extort a confession was "revolting to the sense of justice".

Clearly, therefore, physical torture is impermissible but what about the famous ‘Third Degree’ tactic of prolonged questioning of a suspect following an arrest without a Warrant on incommunicado detention? The Supreme Court has made it abundantly clear that this behaviour is not permissible either.

In Aschcraft vs. Tennessee 322 US 143 (1944), the Supreme Court had to deal with admissibility of a statement procured through an extensive period of questioning under powerful electric lights by groups of lawyers and police officers working together.

The Supreme Court held the confession inadmissible in those circumstances because the questioning was inherently "coercive"; however, in a strident dissent, Justices Jackson, Frankfurter and Roberts complained that police interrogation without violence can be justified in many circumstances.

In Chambers vs. Florida 309 227 (1940), the U.S. Supreme Court held that five days of prolonged questioning on a warrantless arrest was inappropriate.

MIRANDA

Miranda vs. Arizona 384 US 436 (1966), set down the bright line test for judging the admissibility of statements obtained during police interrogation.

Miranda made the self-incrimination rule of the Fifth Amendment pre-eminent. The Court held "the Prosecution may not use statements with the exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination".

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

As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required.

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.

Once a warrant suspect asserts his right to silence and requests legal counsel, the police are obligated to scrupulously and immediately respect his assertion of the Fifth Amendment Right. Further, if during the interrogation, the warned suspect requests an attorney, the interrogation "must cease". See Miranda supra.

This abandonment of questioning the victim after he or she has requested legal counsel was emphatically endorsed in Edwards vs. Arizona 451 US 477 (1981).

LESSONS:

Despite being told about the Miranda case and their Fifth Amendment Rights, most Caribbean young people give statements to the police without benefit of counsel. This has led to many serious problems sometimes leading needlessly to conviction and/or removal of these individuals.

The critical point is that if younger people do not appreciate their rights under Miranda, they will continue to make tactical errors while dealing with the police.

The purpose for the police to read the Miranda card is so that the potential arrestee is clear as to what he has the right to do.

Miranda and its progeny do not permit torture and third-degree tactics.

When an individual is arrested, he should remain silent to protect his rights.


By: Professor David P. Rowe, University of Miami School of Law, Coral Gables, Florida. Spring 2005.

Copyright © 2005 The Law Offices of David P. Rowe & Rosemarie D. Robinson. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.

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