Law Commons^™

The Right Against Self-Incrimination Under Indian Constitution & The Admissibility Of Custodial Statements Under The Indian Evidence Act, 1872, Khagesh Gautam

Maurer Theses and Dissertations

This work argues that the constitutional validity of section 27 of the Indian Evidence Act, 1872 is highly suspect on the ground that it violates the right against self-incrimination protected by article 20(3) of the Indian Constitution. Section 27 codifies the doctrine of confirmation by subsequent recovery, an old British rule of admission according to which self-incriminatory custodial statements and/or confessions obtained by the police or the investigation agency are admissible into evidence on the ground that contents of such statement have been confirmed by recovery of incriminating physical evidence. Chapter I locates the Indian criminal justice system within the …

When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus

Faculty Publications

It seemed so clear a half-century ago. After years of frustration reviewing the voluntariness of confessions on a case-by-case basis, a Supreme Court majority in Miranda v. Arizona held that incriminating statements resulting from interrogation while in custody would not be admissible at trial to prove guilt unless warnings were given to advise a suspect of rights of silence and an attorney. It is disappointing to report that if anything has been established over the past 50 years, it is that this mandate isn't clear at all. It turns out that police officers do not necessarily give exactly the warnings …

Pretrial And Error: The Use Of Statements Inadmissible At Trial In Preliminary Proceedings, Erin Hughes

Duke Journal of Constitutional Law & Public Policy Sidebar

This Note argues that a “criminal case,” as provided by the Fifth Amendment, begins with the initiation of adversarial judicial criminal proceedings, whether that commencement occurs through a formal charge, a preliminary hearing, indictment, information, or arraignment. A broad understanding of the Fifth Amendment’s scope aligns with the Second, Seventh, Ninth and Tenth Circuits’ analysis. In particular, this Note endorses the in-depth analysis provided by the Tenth Circuit in its determination that a “criminal case” under the Fifth Amendment includes preliminary proceedings. This Note further offers an analysis of past Supreme Court precedent as well as policy rationales that support …

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

Reciprocal Immunity, Colin Miller

Indiana Law Journal

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Agwara V. State Bar Of Nev., 133 Nev. Adv. Op. 96 (Dec. 7, 2017) (En Banc), Lucy Crow

Nevada Supreme Court Summaries

The Court adopted the three-prong test in Grosso v. United States, and held that an attorney cannot assert the privilege against self-incrimination to withhold client trust documentation sought in a State Bar investigation. However, the State Bar must have a compelling reason to force disclosure of tax records.

Compulsion, Lawrence Rosenthal

Lawrence Rosenthal

The Right To Silence V. The Fifth Amendment, Tracey Maclin

Faculty Scholarship

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

Prosecutorial Ventriloquism: People V. Tom And The Substantive Use Of Post-Arrest, Pre-Miranda Silence To Infer Consciousness Of Guilt, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

The Right To Silence V. The Fifth Amendment, Tracey Maclin

UF Law Faculty Publications

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

Congressional Due Process, Andrew M. Wright

Andrew M Wright

This article identifies significant deficiencies in Congress’s investigative practices. Consequences of congressional scrutiny can be profound, yet the second Congress calls, almost none of the safeguards of the American legal system are present. I argue such practices demonstrate institutional indifference to constitutional due process norms. The article highlights differences between congressional and judicial proceedings with respect to the safeguards of witnesses and targets. The purpose of congressional inquiry fundamentally differs from adjudication, and therefore does not call for the full complement of procedural rights afforded in judicial proceedings. Congress seeks facts and expertise to inform legislative judgments that will have …

Putting The Cat Back In The Bag: Involuntary Confessions And Self-Incrimination, Joseph A. Iemma

Touro Law Review

No abstract provided.

Self-Incrimination: Are Underlying Questions About A Pending Conviction On Appeal A Violation Of A Defendant's Fifth Amendment Privilege Against Self-Incrimination?, Macdonald R. Drane Iv

Touro Law Review

No abstract provided.

Fact And Fiction In Constitutional Criminal Procedure, Kathryne M. Young, Christin L. Munsch

South Carolina Law Review

No abstract provided.

The Immigrant And Miranda, Anjana Malhotra

Anjana Malhotra

The recent dramatic convergence of immigration and criminal law is transforming the immigration and criminal justice system. While scholars have begun to examine some of the structural implications of this convergence, this article breaks new ground by examining judicial responses, and specifically the sharply divergent approaches that federal appellate courts have used to determine whether Miranda warnings must be given to immigrants during custodial interrogations about their immigration status that have both criminal and civil implications.

The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn

Geoffrey S. Corn

Abstract

The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You

Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attacks. While the “stormy seas” the decision navigated produced a wake of academic study of the wisdom of the decision, little attention has been focused on an equally logical question: did Miranda go far enough? If, as the Miranda Court emphasized, the purpose of Miranda’s warnings was …

The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn

Geoffrey S. Corn

Abstract The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You

Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attack. However, since the Supreme Court decided this seminal case, little attention has been focused on whether Miranda went far enough? If, as the Miranda Court emphasized, the purpose of Miranda warnings was to ensure criminal suspects were provided a meaningful opportunity to exercise their privilege against …

Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa

Journal Articles

In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when …

On Silence: A Reply To Professors Cribari And Judges, Ted Sampsell-Jones

Faculty Scholarship

In 2009, the author wrote an article on the Self-Incrimination Clause. In response to this article, Professors Cribari and Judges wrote a Response suggesting that the author was an abolitionist of the Self-Incrimination Clause. This article is intended to clarify the author's position on the Self-Incrimination Clause and on Griffin v. California. The article begins by explaining the purposes of the Self-Incrimination Clause and highlighting the differences between the right to testify and the right to remain silent. It then analyzes the "test the prosecution" reasoning for the Griffin rule, pointing out its shortcomings and lack of Constitutional basis. The …

New Developments In Fourth, Fifth And Sixth Amendment Law (Panel Remarks), Arthur G. Lefrancois

Arthur G. LeFrancois

No abstract provided.

Self-Incrimination, Supreme Court, Appellate Division, Third Department: In Re Gladys H.

Touro Law Review

No abstract provided.

Self-Incrimination, Supreme Court, Appellate Division, Fourth Department: People V. Hall

Touro Law Review

No abstract provided.

Self-Incrimination, Supreme Court, Appellate Division, First Department: Prudential Securities Incorporated V. Brigianos

Touro Law Review

No abstract provided.

Self-Incrimination, Supreme Court, Bronx County: Seabrook V. Johnson

Touro Law Review

No abstract provided.

Self-Incrimination, Supreme Court, Suffolk County: People V. Shulman

Touro Law Review

No abstract provided.

When The Constable Blunders: A Comparison Of The Law Of Police Interrogation In Canada And The United States, Robert Harvie, Hamar Foster

Seattle University Law Review

This Article explores the Supreme Court of Canada's use of the Charter of Rights and Freedoms in limiting police interrogations and compares its case decisions with cases from the Supreme Court of the United States. Part II of this Article examines the purposes and policies underlying sections 10(b), 7, and 24(2) of the Charter. Part III then examines the application of sections 10(b) and 7 in situations where (1) suspects are interrogated by uniformed police officers or other persons known to be in authority, and (2) suspects are interrogated surreptitiously by persons not known to be in authority. In both …

Self Incrimination

Touro Law Review

No abstract provided.

Self Incrimination

Touro Law Review

No abstract provided.

Self-Incrimination

Touro Law Review

No abstract provided.

Criminal Law And Procedure, David A. Schlueter

Faculty Articles

The Fifth Circuit Court of Appeals annually decides , or in some other way disposes of, several hundred cases which might be considered to fall within the topic of criminal law and procedure. Several conclusions can be drawn from the cases decided by the Fifth Circuit Court of Appeals during this survey period.

First, the court continues to adhere to a posture which reflects trust in the trial and pretrial process. That is, like most appellate courts, it views its role not as simply another forum for correcting all of the mistakes that have occurred in either the pretrial or …