Virginia Criminal Law Case Outline: Fifth Amendment Cases

The following is an outline of Fifth Amendment case law, with an emphasis on Virginia.  The outline is copied from the Fifth Amendment section of an outline maintained by Richard Collins, an attorney at Collins & Hyman, PLC.  Because Mr. Collins created the outline for his own reference, rather than for publication, the outline contains many abbreviations.  Questions regarding the abbreviations, or case cites, can be sent to



Double Jeopardy


Ostrander (COA, published March 18, 2008)- D pled guilty to solicitation to commit murder.  He then objected to the Commonwealth proceeding on attempted capital murder charges arising out of the same act.  When a D elects “to plead guilty at trial to once charge and not guilty to another charge arising from the same criminal act neither transforms the single prosecution into two separate prosecutions nor captures for the D any special protections against successive prosecutions under the Double Jeopardy Clause.”  This case involved a single prosecution and was not barred on double jeopardy grounds.

“When a D is convicted of two or more crimes constituting the same offense, the proper remedy is to vacate both the conviction and the sentence of the lesser offense while leaving in place the conviction and sentence on the greater offense.”  Since one could be convicted of capital murder for hire as the solicitee rather than the solicitor, the proof required to convicted someone of solicitation to commit murder involves proof of facts that attempted capital murder does not.


Payne, VSC, published April 17, 2009- D convicted of two counts of felony hit and run, felony murder and aggravated involuntary manslaughter arising out of two accidents occurring within minutes of the other.  D killed a pedestrian in the second accident, and merely injured another driver in the first accident.  D argued that convictions for felony murder and AIM violated double jeopardy and that § 18.2-36.1(C) permitted the Commonwealth to charge someone with any statutory homicide offense or AIM, but not a common law homicide.  D argued that felony murder is a common law homicide.

The Court held that the statute does not preclude prosecution under another statute, including §18.2-33, felony murder.  Applying Blockberger, the Court noted that each homicide offense for which D was convicted requires proof of an element that the other does not.


Turner, 49 Va. App. 381 (2007)- D charged with DUI-second in GDC.  GDC convicted D of DUI-first.  D appealed conviction and Commonwealth amended it back to DUI-second and D was convicted.  Court held that this violated double jeopardy because D’s conviction of DUI-first in GDC operated as an acquittal of DUI-second.


Coleman v. Commonwealth, 261 Va. 196 (2001)- applies Blockberger test.  If each offense requires, in the abstract, proof of an additional element, then double jeopardy protections do not apply and both convictions will stand.


D charged with first degree felony murder and second degree murder with only one victim.  Double jeopardy protects against three things: 1) prosecution for the same offense after acquittal, 2) prosecution for the same offense after conviction and 3) protects against multiple punishments for the same offense.

At common law, there was a unitary theory of homicide: “the units of prosecution are dead bodies, not theories of aggravation. If the common-law rule remains the law of Virginia, appellant cannot be convicted of two murders for a single killing.” COA held that § 18.2-32 did not alter the common law.  Therefore, DJ barred prosecution for two offenses for the same killing.  COA noted differing principles for statutory homicides such as capital murder and aggravated manslaughter.

When a defendant is convicted in a single trial of a greater offense and a lesser included offense, the court must vacate the lesser conviction.




Garnett (VSC, February 29, 2008)- D convicted of multiple felonies.  V made inconsistent statements during pre-trial interviews.  Commonwealth provided summaries of the inconsistencies to defense.  D appealed, arguing that failure to provide verbatim transcripts/recordings of the statements violated Brady.  Since the summaries provided adequately disclosed all the exculpatory evidence flowing from the statements, there was no violation.  There is no “best evidence rule” for impeachment evidence under Brady.


Gagelonia (COA, published June 3, 2008)- D alleged that trial court erred in not ordering a new trial due to failure to share exculpatory evidence.  Exculpatory information known to the police is information within the Commonwealth’s knowledge and the prosecutor is obliged to disclose regardless of the state of his actual knowledge.  However, no violation occurs if the evidence in question is available to the defendant from other sources.


Strickler v. Greene, 527 U.S. 263 (1999)- there are three components to a true Brady violation: 1) the evidence must be favorable to accused, either by being exculpatory, or as impeachment material; 2) the evidence must have been suppressed by the state, either willfully or inadvertently and 3) prejudice was have ensued.


Bowman, 248 Va. 130 (1994)- “The defendant’s due process rights have been violated if he does not receive [exculpatory] evidence or if he receives the evidence at a point when he cannot effectively use it.”


Coley, COA, published February 9, 2010- after convictions, D filed motion to set aside verdict based on failure to provide exculpatory evidence: various inconsistencies in police testimony and a document that could cast doubt on suspect’s identity.    With the exception of the document, COA held that D could have discovered evidence through due diligence.  The inconsistencies came out at trial and D had opportunity to cross-examine witnesses on these issues.  The document was immaterial to the case because the mistaken identity issue at trial was between D and his twin brother.


Missing Evidence


Gagelonia (COA, published June 3, 2008)- D alleged that trial court erred in not ordering a new trial due to failure to share exculpatory evidence.  Court noted that the missing cell phone and surveillance video actually should be analyzed under Trombetta and Youngblood.  A defendant seeking a new trial on the basis of missing evidence formerly in the Commonwealth’s possession must show that 1) the evidence possessed an apparent exculpatory value, 2) the defendant could not obtain comparable evidence from other sources and 3) the failure to preserve the evidence was in bad faith.  Furthermore, the bad faith requirement turns on whether the police knew the evidence was exculpatory at the time it was lost or destroyed.  D failed to present evidence that there was apparent exculpatory value prior to losing the evidence.

Spoliation does not apply in criminal cases.



Bowman– no error to suppress statements where D was in custody, made pre-Miranda confession, then Mirandized and then confessed again since trial court able to conclude officers deliberately used two-step interrogation procedure.


Rashad (published, COA, October 23, 2007)- D’s statement shouldn’t be suppressed where he asked for an attorney to be present during questioning, but then, as investigators left the room, asked to speak with them without a lawyer.  Questions relating to routine incidents of custody (such as asking for a drink of water) are not sufficient to initiate conduct, however.  But, here, when D asked a question that was ambiguous about his wish to remain silent, the investigators were justified in questioning him to resolve that ambiguity.




U.S. v. Jamison (4th Circuit, December 4, 2007)- D was transported to ER.  While in ER on hospital bed, D told police he’d been shot, was then questioned about incident, which led to discovery he’d shot himself, leading to gun charge.  Sometimes D may be prevented from “pretermitting” questioning because of factors unrelated to police restraint.  Court held he was not in custody because restraints on movement were related to injuries and medical treatment rather than police action.  Also discusses inmate questioning situations.


Hasan (unpublished, December 27, 2007)- questioning in a coercive environment, without more, is insufficient to require Miranda warnings.


J.D.B. v. North Carolina, USC, published June 16, 2011.  A child’s age is relevant for custody analysis.  Good review of custody case law.


Miranda- Interrogation


Gibson, COA, published March 23, 2011.  The Supreme Court has defined interrogation for Miranda purposes as pertaining to “express questioning” as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Supreme Court recognized two exceptions to this definition of interrogation. The first is the “‘routine booking question’ exception which exempts from Miranda’s coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services.’” Id. at 601 (citations omitted). The second exception applies to inquiries “necessarily ‘attendant to’ [a legitimate] police procedure.” Id. at 603-04. In Muniz, the Supreme Court specifically applied the second exception to police inquiries into whether a suspect understood instructions on how to perform a field sobriety test.


Quarles, COA, published March 29, 2011- D arrested, signed rights waiver form and said he wanted to talk to a lawyer.  First officer terminated conversation and second officer, after getting confession from co-defendant, met with D.  When learning that D had invoked his right to counsel, second officer addressed D, implicitly questioning the wisdom of not talking to the police.  Issue became whether second officer’s statements amounted to interrogation.

The definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.  “If a [suspect’s] statement is ‘not foreseeable, then it is volunteered.’”  Furthermore, when determining whether the foreseeable response is incriminating, “‘no distinction may be drawn between inculpatory statements and statements alleged to be merely exculpatory.’” As such, if a police officer should have known that his words were reasonably likely to elicit an attempt by a defendant to exculpate himself, those words constitute an interrogation.

COA found that second officer initiated conversation, as his comments were interrogatory.



Miranda- Reinitiation



Quarles, COA, published March 29, 2011- D arrested, signed rights waiver form and said he wanted to talk to a lawyer.  First officer terminated conversation and second officer, after getting confession from co-defendant, met with D.  When learning that D had invoked his right to counsel, second officer addressed D, implicitly questioning the wisdom of not talking to the police.  D said he wanted to talk and he signed a second rights waiver and wrote that he initially invoked but now he wanted to talk.  Discusses rule.



Miranda- Right to counsel


Zektaw, VSC, June 4, 2009- D charged with rape, etc.  D had come to police station saying he’d heard the police were looking for him.  While he filled out a history sheet with one detective, another detective learned there was an outstanding rape warrant for D and told D about the warrant.  D continued to be talkative.  A detective Mirandized D.  Detective told D he should tell his whole story.  D said, “Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?”  They continued to question D, and D didn’t mention having a lawyer again.

The invocation of the right to counsel must be clear, unambiguous, and unequivocal.  VSC gave overview of precedent dealing with invocation of right to counsel.  Court held that D requested an attorney such that a reasonable officer would understand the request.  The Court also noted that a suspect’s statements made subsequent to the invocation are not relevant to this analysis.


Ferguson, VSC, June 4, 2009- D’s vehicle stopped on suspicious of involvement in a burglary.  Police asked D to follow them to station.  At station, D said he’d like a lawyer.  Police then Mirandized him and D said his mother had told him next time he was in trouble he needed a lawyer.  Investigator then started talking to D about the evidence.  Investigator shut off recorder and then told D he’d bring wrath of hell on D and went to get a search warrant for D’s car.  After investigator left, other officer stayed in room.  Officer knew D.  They were silent for a few minutes, and then D started making vague statements.  Officer asked D questions he admitted were designed to get D to confess.  Officer then asked D whether he felt more comfortable talking to him and D said yes. Officer Mirandized D again, D waived rights and confessed.

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.  Court stated that D’s statements were the productive of a coercive atmosphere and that after D invokes right to counsel, burden is on prosecution to establish that the statements made during any reinitiation were knowing and voluntary.  VSC held statements should have been suppressed.


Stevens, COA, published February 1, 2011- overview of case law.


Burrell, COA, published June 28, 2011.  D told police he wouldn’t answer certain questions without counsel present, but did not specify which questions.  “We hold that when a suspect makes a statement during a custodial interrogation that requests the presence of counsel before answering some questions, while also indicating a willingness to answer other questions without the presence of counsel, the statement must make it clear to a reasonable police officer what questions the suspect is unwilling to answer for the statement to effectively invoke the suspect’s MirandaEdwards right to counsel.  If the suspect fails to do this, the police may continue questioning him, and his subsequent statements remain admissible.”




Gibson, COA, published March 22, 2011.  D arrested for HO.  In car, officer noticed odor of alcohol.  Without Mirandizing D, officer had D perform field sobriety tests.  Trial court suppressed D’s post-arrest statements, but not the tests.  D appealed.

The right against self-incrimination only applies to testimonial communication that is incriminating.  For a communication to be considered testimonial, the speaker (or actor) must “reveal, directly or indirectly, his knowledge of facts relating him to the offense or . . . share his thoughts and beliefs with the Government.” Generally, a “testimonial communication” involves a verbal or written statement, but it may also include acts.  A compelled act “which makes a suspect or accused the source of ‘real or physical evidence’” is not generally considered a testimonial communication.  Court affirmed trial court.


Miranda- Two Step Interrogation


Kuhne, COA, published November 6, 2012. Adopts the Seibert plurality opinion with Kennedy’s requirement that the police must deliberately adopt a two step interrogation.


Right to Remain Silent


Salinas v. Texas, USCC, published June 17, 2013.  D, not in custody or Mirandized, answered some questions but “fell silent” when questioned about bullets from a murder matching his gun.  Prosecutors commented on that silence during trial.  Issue was whether the prosecution can use assertion of the privilege against self-incrimination during pre-arrest noncustodial interrogation in its case in chief.

The Court held that these circumstances do not fall within the exceptions to the rule that a person must invoke the 5th Amendment.  Although there is no “ritualistic formula” for invoking the privilege, it is not invoked by silence.  Therefore, the prosecution was entitled to comment on his silence.


Voluntariness of Statements


Hill (COA, published July 15, 2008)- D placed under arrest for outstanding warrant.  Officers located drugs during a search incident to arrest.  D admitted possession with intent.  Later, officer encountered D’s sister in an SUV.  Sister said that she’d allowed D to borrow car earlier.  Sister opened glove compartment and officer observed cocaine.  Officer arrested sister and took her to jail.  D was still in the booking area.  Officer told D he wanted to speak with him, and after Mirandizing him, said he’d found drugs in sister’s car.  D looked upset.  D said that sister could be in trouble and that if D cooperated, the better off they’d be.  D then admitted the new cocaine was his.  A confession may be involuntary if made under threats to prosecute suspect’s family member, but it is not per se involuntary.  The question is whether the confessor’s will was overborne under the totality of the circumstances.  Based on the trial court’s factual findings, the confession was voluntary.  The court noted that sister was arrested validly, and distinguished a case where the confession was held involuntary after police threatened to arrest family members who had not been arrested and where it wasn’t clear that family members were subject to good faith prosecution.

Richard Collins is an attorney at Collins & Hyman, PLC, with offices in Williamsburg and Newport News.