Business Law Chapter 7 Power point Slide 14 Schmerber California Established

CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,

FOURTEENTH EDITION

BY JACQUELINE R. KANOVITZ

INSTRUCTOR’S GUIDE

Note: Cases that appear in Part II of the textbook are noted in boldface.

Chapter 7

Compulsory Self-Incrimination

Objectives

This chapter discusses two constitutional limitations on the government’s power to compel citizens to

furnish self-incriminating evidence. The Fifth Amendment is concerned with testimonial self-incrimination

(i.e., compulsion to disclose one’s private thoughts). Its application during custodial interrogations was

discussed in Chapter 6. This chapter provides a more complete analysis of the Fifth Amendment. The

second limitation stems from the Fourth Amendment prohibition on unreasonable searches and seizures.

Evidence taken from a suspect’s body is called physical evidence. Compulsory production of self-

incriminating physical evidence requires a restriction of the suspect’s freedom of movement (i.e., a seizure

of his person) and sometimes also an invasion of his privacy or bodily integrity. Concern for these interests

is addressed by the Fourth Amendment. This chapter builds on the Fourth Amendment principles introduced

in Chapters 3 and 4. The student should leave this chapter with an understanding of:

1. The constitutional principles that regulate compulsory production of self-incriminating testimony and

physical evidence.

7. Fourth Amendment requirements for strip searches and body cavity searches.

Discussion Outline

[PowerPoint Slides 1 and 2 contain book and chapter title information.]

PowerPoint Slide 3. Introduction

PowerPoint Slide 4. Constitutional Restrictions on Compulsory Self-Incrimination

• Fourth Amendment

o Compulsory production of physical evidence

§ 7.1 Introduction

A. There are two types of self-incriminating evidence—testimony and physical evidence.

1. Testimony refers to words or conduct that reveal what a person knows. The source of constitutional

2. Physical evidence includes just about everything else. A suspect’s body can be the source of two

different kinds of physical evidence—appearance evidence (i.e., evidence derived from body

§ 7.2 Fifth Amendment Protection against Testimonial Self-Incrimination

A. The Fifth Amendment privilege against self-incrimination is violated whenever the government

PowerPoint Slide 5. Degrees of Fifth Amendment Protection

• Suspects have the right to remain silent during custodial

B. There are two degrees of Fifth Amendment protection:

1. Citizens enjoy an absolute right to remain silent during custodial interrogations and at their

criminal trial.

2. In all other situations, citizens may be compelled to appear and testify, but are privileged to refuse

to answer specific questions if the answer might tend to incriminate them.

a. Illustration: A and B are arrested on charges of operating a drug-trafficking ring and taken to

PowerPoint Slide 6. Prerequisites for Application of the Fifth Amendment

The Fifth Amendment states that “no person shall be compelled

in any criminal case to be witness against himself.”

(1) Compulsion, (2) testimony, and (3) self-incrimination are

necessary to trigger protection.

• Testimony

§ 7.3 Prerequisites for Application of the Fifth Amendment

Three prerequisites are necessary to trigger protection of the Fifth Amendment privilege against self–

incrimination: (1) testimony (2) compulsion, and (3) self-incrimination.

A. Testimony. Testimony, for purposes of the Fifth Amendment, includes any behavior that, explicitly or

implicitly, reveals something a person knows.

▪ Schmerber v. California (Part II) discusses the meaning of “testimony” for purposes of the Fifth

PowerPoint Slide 7. Compulsion and the Subpoena

The normal manner in which our legal system compels

testimony is by issuing a subpoena:

• Court order to appear and testify

B. Compulsion. Compulsion occurs when the government threatens serious consequences unless a person

makes a statement. The threatened consequences may take the form of contempt sanctions for

disobeying a subpoena, physical harm, job loss, etc.

1. The relevant time for evaluating whether compulsion has occurred is when an incriminating

statement was made originally. The Fifth Amendment does not prevent the government from using

existing incriminating writings, records, letters, and other documents that were voluntarily

PowerPoint Slide 8. Self-Incrimination and Immunity

• Absolute immunity

o Bars the government from prosecuting the witness for

C. Self-Incrimination. To be self-incriminating, the statement must expose the maker to risk of criminal

prosecution.

1. People under arrest may be compelled to furnish biographical information (i.e., name, address,

Social Security number, etc.) needed for booking because this information is not incriminating.

2. People who have already been tried for the crime to which the questions relate may not invoke the

3. People who have been granted immunity from prosecution may not invoke the protection of the

Fifth Amendment. Two different kinds of immunity are available. Absolute immunity exempts

PowerPoint Slide 9. Waiver of the Privilege

• A waiver occurs when a person voluntarily answers

incriminating questions without invoking the privilege.

§ 7.4 Rules for Invoking and Waiving Fifth Amendment Protection

A. Invoking the Fifth Amendment

1. Criminal defendants have a Fifth Amendment right to remain silent at their criminal trial. They

B. Waiving the privilege

1. A waiver occurs when a person who has a Fifth Amendment privilege voluntarily testifies without

invoking it. Under Miranda, a valid waiver requires a warning. However, the Supreme Court has

2. Criminal defendants who take the witness stand waive the privilege, but only concerning the

PowerPoint Slide 10. Adverse Inferences from Taking the Fifth Amendment

• Judges and prosecutors are barred from commenting that a

§ 7.5 Protection against Adverse Consequences from Exercising the Privilege against Self–

Incrimination

A. Judges and prosecutors are not permitted to make adverse comments about a defendant’s refusal to

answer police questions during a custodial interrogation or a defendant’s decision not to testify at his

or her criminal trial or sentencing hearing.

§ 7.6 Self-Reporting Laws and the Fifth Amendment

A. The Fifth Amendment does not exempt people from filing government reports that could draw attention

to their criminal activity when the reporting requirement furthers a legitimate regulatory purpose.

1. The Internal Revenue Code, occupational tax laws, and hit-and-run motorist statutes are examples

2. However, citizens may refuse to comply with government reporting laws that serve no purpose

besides forcing them to disclose their criminal activity.

PowerPoint Slide 11. Bodily Self-Incrimination

• The Fifth Amendment does not protect against compulsory

§ 7.7 Fourth Amendment Protection against Bodily Self-Incrimination

A. The Fifth Amendment only protects against testimonial self-incrimination. It does not protect against

compulsion to furnish self-incriminating evidence that comes from his body.

▪ Schmerber v. California (Part II) is a good case to transition from Fifth Amendment protection

against testimonial self-incrimination to Fourth Amendment protection against bodily self–

▪ Because the Miranda rule is based on the Fifth Amendment, warnings are not required before

compelling suspects to participate in procedures that yield physical evidence, such as fingerprints,

B. Compelled production of self-incriminating physical evidence is regulated by the Fourth Amendment.

C. Physical evidence taken from a suspect’s body is broken down into two categories—appearance and

bodily evidence—depending on the interests that are implicated.

1. Appearance evidence refers to evidence derived from bodily characteristics that are routinely

displayed to the public.

PowerPoint Slide 12. Appearance Evidence

• Derives from bodily characteristics that are routinely

displayed to the public

• Examples:

§ 7.8 Requirements for Appearance Evidence

A. The most common police procedures involving appearance evidence are: (1) station house lineups; (2)

B. Because the suspect’s interest in freedom of movement is the only interest invaded by these procedures,

compulsory production of appearance evidence is permitted whenever the police have constitutional

grounds to seize the suspect and detain him or her long enough to perform the procedure.

1. A lawful arrest carries authority to compel participation in all procedures that yield appearance.

C. Some jurisdictions have statutes authorizing the prosecutor to apply to a court for an order compelling

D. An illegal arrest taints appearance evidence. Fingerprint and footprint matches, positive lineup

identifications, and other forms of appearance evidence that derive from an illegal arrest will be

suppressed.

PowerPoint Slide 13. Bodily Evidence

• Physical evidence obtained by (1) inspecting private parts of

the anatomy, (2) penetrating below the body surface, or (3)

§ 7.9 Requirements for Bodily Evidence

A. Bodily evidence refers to evidence derived from a suspect’s body by: (1) searching areas not normally

exposed to the public, (2) penetrating the body surface, or (3) removing biological or foreign

substances.

B. The following procedures involve bodily evidence: (1) removing incriminating residue from the body’s

C. Unlike appearance evidence, which involves no intrusion beyond an interference with the suspect’s

PowerPoint Slide 14. Schmerber v. California

• Established the modern framework for evaluating the

D. Schmerber v. California (Part II). In Schmerber, the Supreme Court established the contemporary

framework for evaluating when highly intrusive bodily searches satisfy Fourth Amendment standards

of reasonableness. Schmerber was arrested for drunk driving and taken to the hospital, where a blood

sample was drawn without his consent. The sample was subjected to chemical analysis and yielded

evidence of alcohol intoxication. The test results were admitted at Schmerber’s trial, over his objection

that the blood sample was the product of an unconstitutional search and seizure. The following points

should be made about the case: (1) Compulsory extraction of blood for chemical analysis constitutes

both a search and a seizure, calling for analysis under the Fourth Amendment. (2) Intrusive procedures

E. Surgical intrusions to recover evidence. Of all bodily evidence procedures, surgical intrusions under

general anesthesia are the most invasive. Because the government’s need for the evidence must be

greater than the invasion of the suspect’s privacy or bodily integrity that will be required to obtain it,

PowerPoint Slide 15. Procedures Requiring a Warrant

Unless confronted with an emergency that could result in the

§ 7.10 Necessity of a Search Warrant to Explore for Bodily Evidence

A. Unless confronted with an emergency that threatens destruction of evidence, police should obtain a

search warrant before arranging for procedures that involve: (1) taking saliva, urine, semen, pubic hair,

or other bodily tissue or fluids; (2) penetration of the body’s surface; (3) examination of rectal or genital

cavities; (4) medical risk, or (5) significant pain, discomfort, or humiliation.

PowerPoint Slide 16. Exigent Circumstances

• The exigent circumstance exception allows the police to conduct

B. Exigent circumstances exception. The exigent circumstances exception excuses the need for a search

warrant when police have probable cause to believe that incriminating evidence is present and that the

evidence will be destroyed if they delay action to obtain a search warrant. Courts have applied this

exception to:

1. Extracting blood to run tests for alcohol intoxication. However, the natural metabolism of alcohol

in the bloodstream does not automatically create exigent circumstances excusing the need for a

search warrant. Whether a warrant is necessary depends on whether one can be obtained “within

2. Swabbing for residue. Because residue left on the skin after the commission of a crime can also

deteriorate rapidly, no warrant is required. Police may perform this procedure whenever they have

3. Reaching into a suspect’s mouth. When a suspect tries to swallow evidence, there is no time to get

a warrant. Police may try to retrieve it.

C. A search warrant is not is required to take a DNA swab from persons arrested for serious crimes when

the swab is taken as a routine part of the booking process. This is because the sample is taken for an

administrative purpose (to identify the person arrested through his DNA, determine whether he is too

dangerous to be released on bail, etc.), not investigatory (to obtain evidence of the crime for which he

was arrested.)

▪ Maryland v. King (Part II). The Supreme Court upheld the Maryland DNA Collection Act,

PowerPoint Slide 17. Strip and Body Cavity Searches

• Investigative strip search

o Police must have reasonable suspicion that a search will turn

up drugs, weapons, criminal evidence, or contraband

§ 7.11 Strip Searches and Body Cavity Searches

A. The term “strip search,” for Fourth Amendment purposes, refers to “any [forced] exposure or

observation of a portion of a person’s body where the person has a ‘reasonable expectation of privacy.”

1. Investigatory strip search. Strip searches conducted to gather evidence require a lawful arrest

2. Jail intake strip searches. Florence v. Board of Chosen Freeholders of County of Burlington

(Part II). Blanket strip search policies requiring all persons booked into a detention facility to

3. Manual body cavity search. Searches that involve touching or probing of anal or genital cavities

Student Review Questions (Answers are provided at the end for questions that have asterisks beside them.)

1. What Amendment protects against testimonial self-incrimination? (§7.1)

2. Which Amendment is concerned with bodily self-incrimination? (§7.1)

3. In what legal settings besides criminal trials can the Fifth Amendment be invoked? (§7.2)

6. What three requirements are necessary to trigger protection of the Fifth Amendment privilege against

self-incrimination? (§7.3)

7. How is the term “testimony” defined? (§7.3(A))

8. How is the term “compelled” defined? (§7.3(B))

9. When is testimony considered to be “self-incriminating”? (§7.3(C))

*10. Indicate whether the Fifth Amendment privilege against self-incrimination applies and, if not, which

of the three requirements are missing.

______ a. Seizing a drug dealer’s business records and using them and using them against him at his

*11. Indicate whether Sam enjoys the right to remain silent, the privilege not to answer the specific question

asked, or neither privilege in each of the following situations. (§§7.2, 7.3)

a. Sam is arrested for driving under the influence of alcohol, taken to the police station, and asked

questions about his name, address, Social Security number, date of birth, height, and weight for

purposes of booking.

b. Sam is arrested for driving under the influence of alcohol and taken to the police station, where he

*12.There are several situations in which a person may be compelled to answer questions concerning his

own criminal activity. Identify them, and explain why the Fifth Amendment privilege against self-

incrimination is inapplicable? (§7.3(C))

13. What is the difference between absolute immunity and use (including derivative use) immunity?

(§7.3(C))

14. How is the privilege against self-incrimination invoked by a defendant at his/her criminal trial? How

is the privilege against self-incrimination invoked by a witness who is not the defendant? (§7.4)

18. What protection does the Fifth Amendment provide against the government’s use of a suspect’s body

as a source of evidence? (§§7.1, 7.7, 7.8(A); Schmerber v. California (Part II))

*19.George was arrested and taken to the police station where he was given a field sobriety test during

which he was required to raise one foot approximately six inches off the ground and, while in that

position and looking at that foot, to count backwards from 40 to 1. George made numerous mistakes,

supporting the inference that he was too intoxicated to perform the task. At his trial, George moved to

suppress evidence of his performance on the field sobriety test on the grounds that the evidence was

*20. Are Miranda warnings required before compelling suspects to submit to the following procedures?

Explain why or why not.

a. Fingerprinting?

21. What three interests that people have in their bodies does the Fourth Amendment protect (§7.7)

22. What is appearance evidence? What interest or interests, identified in Question 21, are implicated by

compelled participation in procedures that yield appearance evidence? What is bodily evidence? What

interest or interests are implicated by compelled participation in procedures that yield bodily? (§§7.7,

7.8)

*23. Indicate whether the following procedures yield appearance or bodily evidence:

a. Photographing

b. Participation in a lineup

c. Strip searches

d. Compulsory submission of a handwriting sample

*24. What does the Fourth Amendment require before police can compel suspects to participate in a

procedure that yields appearance evidence? (§7.8, Figure 7.4)

25. State the four-factor test established in Schmerber v. California for when highly intrusive bodily

searches may be performed to retrieve evidence. (§7.9)

26. When are police excused from obtaining a search warrant before having blood drawn to test for alcohol

intoxication? (§7.10, Missouri v. McNeely (Part II))

27. What does the Fourth Amendment require for investigatory strip searches? Jail intake strip searches?

Manual body cavity searches? (§7.11)

ANSWERS:

10. a. The Fifth Amendment does not apply because the defendant was not compelled to prepare the

incriminating business records the government seized. Although he was compelled to turn them

over, the relevant time for determining whether a person has been compelled to incriminate

11. a. Neither protection applies. The questions asked were booking questions. The Fifth Amendment

does not apply to booking questions because they do not require an incriminating response.

12. A person cannot invoke the Fifth Amendment if he has already been tried for the crime to which