Confessional Law Applicable to the Fourth, Fifth, and Sixth Amendments

Constitutional Rights Applicable to Criminal Procedure and Confession Law: Fourth Amendment, Fifth Amendment, and Sixth Amendment

By Shaun E. Sundahl

Date: June 24, 2011

The Fifth Amendment Right Against Double Jeopardy 

      The Fifth Amendment to the U.S. Constitution has four basic components that include double jeopardy, due process, the right to be heard by a grand jury, and protection against self-incrimination. We begin with the double jeopardy component of the Fifth Amendment which states that
no person shall be“placed twice in jeopardy of life or limb." In other words, no one can be accused for the same crime in criminal court. Some prosecutors may violate the double jeopardy component by charging the defendant with two different crimes involving different wording. In determining if the structure of two different codes is in essence, the same, the Blockburger test seeks to clarify whether or not double-jeopardy is attached.  For example, where the same act or transaction constitutes two different statutory provisions, the court must decide whether each provision requires proof of a fact which the other does not (Poulin, 2004:11). The next component of the Fifth Amendment is the due process mandate. The Fifth Amendment states no one shall be “deprived of life, liberty, and property without due process of the law.” The term “due process” has been an ambiguous term in law.
Williams (2010), referencing Murray’s Lessee v. Hoboken Land & Improvement Co (1855), mentioned ‘due process of law’ generally implies inter alia, “regular allegations, opportunity to answer, and a trial (pg. 466).”
The Fifth Amendment the Right to a Grand Jury Hearing

      Moving forward, the third component of the Fifth Amendment is the right to a grand jury hearing The defendant has a right to a grand jury hearing when he/she is accused of infamous or capital crimes. Today, this meaning is given to felonies and applies only to crimes under federal jurisdiction. The fourth component, is the right against self-incrimination. According to Solomon (1998), in order to receive Fifth Amendment protection against self-incrimination, “a person's statement or act must be compelled, be testimonial, and incriminate the person in a criminal proceeding (pg. 1)”. For a prisoner who is read his Miranda rights and chooses to not say whether he wished to remain silent or that he did not want to talk to with the police, talking about the crime in response to a question indicates waiver of his right to remain silent (Berghuis v.Thompkins, 2010). Additionally, the component against self-incrimination covers compulsion which in the context of the Fifth Amendment is "whether, considering the totality of the circumstances, the free will of the witness was overborne." Because someone’s free will can be literally beaten out of them, the focus is not on the conduct of the defendant, but on the behavior of the government (Allen, 2004:11).

The Fifth Amendment Right Against Self-Incrimination
     A person’s right to be free from compulsion in the context of self-incrimination has indoctrinated another form of law evolving from the Fifth Amendment; this is known as “confession law.” The landmark case of Miranda v Arizona (1966) directs us to confession law. In fact, Miranda expanded the Fifth Amendment constitutional rights for those questioned by the government while in custody (
Metzgar, 2010:1). Under Miranda, certain safeguards are required in order to show the defendant knowingly and intelligently waive his/her rights to agree to answer questions or make a statement. The safeguards Miranda requires are: (1) the defendant is warned before questioning, he has the right to remain silent and that anything he says can be used against him in a court of law; (2) the defendant must be told he had has the right to the presence of an attorney, and if he cannot afford one, an attorney will be appointed for him prior to any questioning if he so desires. The prosecutor has the burden of proving these warnings were given and the defendant knowingly and intelligently waived these rights. Miranda rights have been so imbedded in criminal investigations that many police agencies require their officers to carry a card labeled “Miranda Rights.” Some have required their officers to have the defendant acknowledge by signing that he/she understands his Miranda rights.

The Fourth Amendment Right Against Unreasonable Search & Seizure

 Miranda is not the only constitutional protection for the accused, considering the Fourth Amendment works to cover the rights of people to be free from unreasonable search and seizure by the government.  The Amendment establishes all warrants shall not be issued without probable cause and supported by Oath or Affirmation.  Additionally, the warrant must describe in particularity, the place to be searched and persons or things to be seized. If the government is able to secure a warrant, they must knock and announce prior to executing the warrant unless it would be reasonable not to do so such as armed resistance or destruction of evidence (Davies, 2010:34).Furthermore, this Amendment is relevant to identification of the defendant since the police may locate incriminating evidence in the defendant home, on his person, or in containers or places in which he/she has possession. The evidence that might be found may identify the defendant as the person who committed the crime.

Moreover, Marceau (2008) argues Mapp v Ohio (1961) is the seminal case recognizing protections afforded under the Fourth Amendment do apply with equal force to the states and the federal government (p.10). In Mapp, the U.S. Supreme Court ruled
all evidence obtained by searches and seizures in violation of the Federal Constitution are inadmissible in a criminal trial in state court. The relevance to criminal investigation procedures and policies is that police should seek a search warrant when able to and refrain from illegal methods of searching for information (evidence) to be used to identify the defendant as the actual culprit. If the police refuse to abide by the decision, the evidence cannot be used against them. A recent case, affecting criminal investigation is Gant v. Arizona (2009). The issue was whether, police may conduct a warrantless search of a car if its recently arrested occupant poses no threat to officer safety or preservation of evidence. In the 5-4 decision, the court said no if the occupant is secured by police and there is little possibility the occupant may reach into the vehicle. The former cases supported a doctrine known as “search incident to arrest,” however Gant curbed the rights of law enforcement to search vehicles.

The Fifth Amendment Right Against Self-Incrimination: A Closer Perspective

 Although we discussed the Fifth Amendment in the beginning, more specifics is needed to understand the protection of oneself against self-incrimination. One does not have to identify himself in testimony either directly or indirectly as the culprit. If the defendant is required to testify against himself, the defendant risks the possibility of identifying him/herself as the actual culprit. In addition, the defendant does not have be at trial in order for the right against self-incrimination to attach. Evidence compelled from the defendant during testimonial communications is inadmissible and the Fifth Amendment provides protection. What is testimonial communications?  Testimonial communications was defined by the U.S. Supreme Court in Doe v United States (1919).  The court held that in order for communication to be considered testimonial, "a communication must itself, explicitly or implicitly, relate a factual assertion or disclose information" that expresses "the contents of an individual's mind." Furthermore, in 2006, the U.S. Supreme Court clarified the definition of testimonial communication by referring to it as testimonial evidence. The Court defined testimonial evidence in Davis v. Washington and Hammon v Indiana as: statements made in the course of a non-emergency police interrogation when the circumstances objectively indicate there is no emergency and the “primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution (Lowrey, 2007).” How about when law enforcement compels a person to reenact a crime, shave a beard or mustache, try on clothing, dye her hair, speech exemplars, provide hair samples, have teeth or gums examined, submit to a blood alcohol or urine test, DNA samples? Is this testimonial evidence? The answer is no and the courts generally agree to this answer (Solomon,1998:1).  How about handwriting exemplars? Yunes (2007), tell us when the defendant produces handwriting exemplars, one’s testimonial capacities are not engaged; therefore one cannot be compelled as a witness against himself (pg.1).

The Sixth Amendment and the Line-Up

The right against self-incrimination was not the last Amendment the framers created against coercive government; consider the Sixth Amendment. The Sixth Amendment covers the identification of suspects under police-arranged procedures. A police-arranged identification procedure involves identification of the defendant in a post arrest situation, usually called a live line-up. An example would be police arrest John Doe for burglary and transport him to the police station for booking. John will be placed alongside other persons in custody and the witness would identify the suspect among others.  Here, because the situation is in a post-custodial environment, the defendant is allowed to have an attorney present.  During the line-up, the police may not make any suggestive remarks or actions. For example, the police may not tell the witness “take a very good look at the guy with the #3 label.” Here, the police are suggesting #3 is the culprit. The witness must identify the suspect without the help of police. It is for the reason police may produce intended or unintended remarks to hint a particular person is the suspect, the defendant is allowed to have an attorney present.  

    The issue with the Sixth Amendment is it can contain ambiguity. What happens when someone brutally stabs his ex-wife and a day and a half later, the police bring the suspect to the hospital bed, and surround him while waiting for a positive identification? Let’s add to the fact, the surviving spouse positively identifies the suspect and the identification was admitted into evidence.  These were
the facts
in Stovall v. Denno (1967).  The U.S. Supreme Court ruled the “bed side” identification was admissible and mentioned “the practice of showing suspects singly to persons for purposes of identification, and not as part of a line-up, has been widely condemned.” On another note, the court mentioned a claimed violation of due process during an identification procedure depends on the totality of the circumstances.  Here, no one knew how long the victim would survive.  The court also rationalized their decision by weighing the need to identify the person responsible for the attack and the need for immediate action since the victim could not visit the jail.  

******Would you like to cite this article under APA guidelines? Here you are:

Sundahl, S. (2011, June 24). Constitutional Rights Applicable to Criminal Procedure and Confession Law: Fourth Amendment, Fifth Amendment, and Sixth Amendment. Retrieved [enter today's date], from Sundahl & Associates:








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