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SOME MAIN ROOMS

PREMIUM ROOMS

MISC BUSHWAH

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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

RIGHT AGAINST SELF-INCRIMINATION

Granted by the Fifth Amendment. Allows a person to refuse to answer questions or give other evidence that would subject him or her to criminal prosecution.

The Supreme Court has stated that "[t]he sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.. . . Indeed, the Fifth Amendment privilege is not concerned "with moral and psychological pressures to confess emanating from sources other than official coercion." Oregon v. Elstad, 470 U.S. 298, 305 (1985). The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on "free choice" in any broader sense of the word." Colorado v. Connelly, 479 U.S. 157, 170 (1986) (reversing a determination that a Miranda waiver was involuntary where the ruling was based on a psychiatrist's testimony that defendant, who believed that the "voice of God" told him to confess, was not capable of making a free choice); see also Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir. 1990) (" `[P]ersonal characteristics of the defendant are constitutionally irrelevant absent proof of coercion.'") (quoting United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir. 1987)).

A defendant's subjective characteristics are relevant to the voluntariness inquiry when there is evidence of psychological coercion, because such personal sensitivities may "render[] him more susceptible to subtle forms of coercion." Commonwealth of Northern Mariana Islands v. Mendiola, 976 F.2d 475, 485 (9th Cir. 1993).

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