Tag: Fifth Amendment

You Have The Right to Remain Silent, Kinda

By Joseph James Gianetti

“You have the right to remain silent. Anything you say or do may be used against you in a court of law. In the meantime, we may hook you up to a machine, read your mind and use your subconscious thoughts against you…”

The Fifth Amendment of the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This is known as the privilege against compelled self-incrimination. Essentially, the government may not force a defendant to provide self-incriminating information. However, only testimonial evidence is protected; non-testimonial evidence is outside the scope of the Fifth Amendment and, to date, is not.

In assessing whether evidence is testimonial, we look to see if the suspect is asked a question that would require her to communicate an express or implied assertion of fact or belief. In other words, as was set out in the 1990 United States Supreme Court case of Pennsylvania v. Muniz, a response by a suspect is testimonial if the question asked is “reasonably likely to elicit an incriminating response.” Asking a suspect her name and address, is not considered testimonial – though of course, such information could be incriminating, if someone, say didn’t want to admit that yes, she was indeed the criminal who is featured on Wanted posters.

While the line between what is considered self-incriminating, and the line between what is deemed testimonial is already blurry, new technologies further cloud these lines.

The New York Times recently interviewed Dr. S. Matthew Liao, a neuroethicist who directs the bioethics program at New York University, and published an article titled “Studying Ethical Questions as the Brian’s Black Box is Unlocked.” The piece, in part, discusses the recent attention that f.M.R.I.s (functional magnetic imagining) are receiving. With an f.M.R.I. “you can get pictures of what the brain is doing during cognition” Dr. Liao reported.

This got LASIS thinking.

If the police conducted an f.M.R.I. on a suspect, could the results be used against her in a court of law? Would this constitute testifying against oneself and thus violate the Fifth Amendment privilege against compelled self-incrimination? Would an f.M.R.I. result be considered testimonial?

The article didn’t say. We explore the possibilities.



Comments Off on You Have The Right to Remain Silent, Kinda

Revisiting a (Terribly) Wrongful Confession: Part II


By Chelsea Silverstein

In Part I of this investigation, we examined Jessie Misskelley’s confession under a due process clause analysis to reveal the coercive tactics that lead to a factually inaccurate confession by a vulnerable, borderline-retarded teen. That unreliable and highly prejudicial confession was leaked to the press without any mention of its weaknesses. Based on that confession, Jessie Misskelley, Damien Echols and Jason Baldwin appeared guilty to the general public before their trials even began.

Today we will examine his confession through the prism of the fifth amendment.

Just as the due process clause protects against involuntary confessions, the fifth amendment protects people from the use of “compelled” confessions in trials. Our judicial system is very protective of people’s fifth amendment rights against compelled confessions.  The Supreme Court has even acknowledged that any “police interview of an individual suspected of a crime has coercive aspects to it.”

To mitigate these coercive aspects, the Court in 1966 announced a rule in Miranda v. Arizona that required police to inform people of their Constitutional rights before beginning a formal interrogation. These rights, well known to all of us as the Miranda rights, require that people be warned of their right to remain silent, that anything they say may be used as evidence against them, and that they are entitled to an attorney and if they cannot afford one, the court will appoint one. Anyone who’s watched an episode of “Law & Order” knows that.

What’s not as well known:  courts presume that people haven’t waived these rights unless the government proves that they did so “voluntarily, knowingly and intelligently,”

Although Mr. Misskelley was read his Miranda rights, his age and cognitive disabilities should have been carefully considered when determining whether he validly waived them. And without a valid waiver, Mr. Misskelley’s confession should have been excluded from his trial.   (more…)



Revisiting a (Terribly) Wrongful Confession


By Chelsea Silverstein

Late one afternoon in May 1993, three West Memphis, Arkansas second-grade boys were seen riding bikes through their neighborhood. Steven Branch, Christopher Byers and Michael Moore were brutally murdered later that evening.

The day after the boys went missing, authorities discovered their tortured, mutilated bodies, hog-tied and naked in a shallow creek surrounded by woods just a few blocks away from the boys’ homes. The crime scene provided little in the way of clues. The banks along the creek were cleared of all traces of blood and footprints, and the boys’ bodies, bikes and clothing had been dumped in the creek, further deteriorating any physical evidence.

Before long, rumors spread through West Memphis, filling in the evidentiary gaps. The murders, people stated with assurance, were the product of Satanic cult rituals.  Soon, three teenagers were the prime and only suspects, based on little more than their status as outsiders and fans of heavy metal music.

Early in the investigation, Steve Jones, a Juvenile Officer in the area, felt that the murders resembled a satanic sacrifice, and told higher-ups that he knew a teenager who was the likely culprit:  Damien Echols.

Without any evidence linking Mr. Echols to the murders, police began interviewing people who knew him. Among those interviewed was 17-year-old Jessie Misskelley. Although Mr. Misskelley was not then a suspect, his interview turned into a confession that also accused Mr. Echols and his best friend Jason Baldwin of the murders. All three young men were soon arrested.

Filmmakers Joe Berlinger and Bruce Sinofsky traveled down to West Memphis days after the arrests to cover the story of what they thought was a gruesome crime that had been solved, and its effects on the community.  Instead, they found that they were covering a modern-day witch-hunt; nothing about the three teens, the “West Memphis Three,” seemed remotely connected to the crime.

The 1996 HBO documentary, “Paradise Lost: The Child Murders at Robin Hood Hills” turned out to be the first film of what became an award-winning trilogy. With full courtroom access, jailhouse interviews and behind-the-scenes strategy meetings, the film revealed the prejudices, constitutional missteps, and deficient physical evidence that the press, judge, and jury apparently ignored.

The film resonated with audiences, who started a movement to try to free the West Memphis Three. Last August, 18 years after their initial arrest, the three men finally walked free after entering an Alford plea deal. This legal mechanism allowed the defendants to maintain their innocence while entering a guilty plea. The plea gave the men their immediate freedom, and shielded the state from lawsuits and millions of dollars in damages – a virtual guarantee if there would have been a retrial.

All three films are fascinating but from a legal perspective, I was struck by what appeared to be judicial irregularities and violations behind Jessie Misskelly’s confession.  I wasn’t quite sure what the law was, and how his rights were violated. So I did some digging.

And it’s plain that Mr. Misskelly’s confession should never have been admitted into evidence in his trial.   (more…)



Can a Murderer be Convicted After He was Acquitted Without Violating the Law Against Double Jeopardy?

By Jeremy Potter

On April 9, a military court found Army Master Sgt. Timothy Hennis guilty of murdering Kathryn Eastburn and her two daughters, ages three and five.  Eastburn was raped and all three were stabbed to death in their home just outside Fort Bragg, NC, while father and husband Gary Eastburn, an officer in the Air Force, was deployed at officers training in Alabama.

Hennis had adopted the Eastburn family dog two days before the murders; he was identified by an eyewitness in the original trial and convicted for the triple-homicide and sentenced to death in 1986.  Three years later, he was acquitted on appeal.

A free man, Hennis returned to the Army, eventually serving in Operation Desert Storm; he retired in 2004.  DNA evidence that was not available in the 1980s came to light in 2006, when authorities were able to match the DNA of the stored sample Hennis had voluntarily provided.



1 Comment »