Defining Silence under Doyle v. Ohio, Has the Nebraska Supreme Court become an Impregnable Citadel of Technicality - State v. Woods

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Authors
Skalka, David J.
Issue Date
1997
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Journal Article
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INTRODUCTION|A prosecutor is bound to use all legitimate means to secure a conviction. Yet, the endeavor to obtain convictions must not include tactics that prejudice an accused's substantive right to receive a fair trial, or the conviction may be reversed. This substantive right could be infringed when a prosecutor does not respect a defendant's Fifth Amendment Constitutional privilege against self-incrimination. The Fifth Amendment to the United States Constitution provides in pertinent part: "No person.., shall be compelled in any criminal case to be a witness against himself. . . ." The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that the Fifth Amendment privilege against self-incrimination be honored by the states. The issue of whether there is a privilege against self incrimination, however, is much older than the Constitution.|In Miranda v. Arizona, the United States Supreme Court held that the statements that a defendant makes to investigating authorities are inadmissible against that defendant unless those authorities have first properly informed the defendant of his Fifth Amendment right against self-incrimination. In Doyle v. Ohio, the Supreme Court held that when a defendant remains silent after receiving Miranda warnings, a prosecutor's use of that post-arrest, post-Miranda silence violates due process because its use unfairly prejudices the defendant...
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30 Creighton L. Rev. 171 (1996-1997)
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Creighton University School of Law
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