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9. With regard to the diary, the court should
The defendant was charged with murder. His attorney has moved to exclude the diary from evidence on the ground that its admission would violate the defendant's privilege against self-incrimination. Counsel has also argued that the defendant could not give informed consent to the search because more than 48 hours had passed since the making of the entry and hence he could not remember the existence of the incriminating entry at the time he gave his consent. There is no evidence that the police officers who secured the defendant's consent to the search were aware of his memory impairment.
After the defendant was charged, the police visited him and asked if they might search his home. The defendant consented. The police found a diary written by the defendant. An entry dated the same day as the victim's disappearance read, «Indescribable excitement. Why did no one ever tell me that killing gave such pleasure to the master?»
A defendant was charged with the murder of a man who had been strangled and whose body was found in some woods near his home. The defendant suffers from a neurological problem that makes it impossible for him to remember an occurrence for longer than 48 hours.
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The police may constitutionally make a warrantless search if they receive the consent of the individual whose premises, effects, or person are to be searched. Consent must be «voluntary,» meaning it was not «the product of duress or coercion, express or implied.» Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
The Fifth Amendment to the U.S. Constitution states that «no person. .. shall be compelled in any criminal case to be a witness against himself.. . .» Not all activity that might incriminate a person is protected — only «testimonial» activity is covered by the privilege. To be protected, the communication must also be compulsory. The main impact of this requirement is that where a person voluntarily puts information in written form, the document is not privileged even though it is incriminating and may even be testimonial. See generally United States v. Doe, 465 U.S. 605 (1984).
The «good faith» exception only applies when a warrant issued to the police is invalid but they reasonably believed it was valid and relied upon that belief.
A is correct. The court should admit the diary because the defendant's consent was voluntary and the writing was not compulsory. Under the Fourth Amendment, people are protected from warrantless searches, but voluntary consent to a search waives this protection. By obtaining the defendant's consent, without any evidence of duress or coercion, and unaware that he had a memory condition, the consent was voluntary. Moreover, the diary's written statement regarding the killing was freely made, not compulsory, and therefore admitting it does not violate the right against self-incrimination.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. The diary should be admitted as the fruit of a legal search that was consented to, not because of the good-faith exception to the exclusionary rule, which applies only when there is a problem with a warrant that the police reasonably believed was valid. Here, there was no warrant necessary because of the voluntary consent to search.
C is incorrect. The defendant was competent to consent to the search. First, his lack of knowledge that they would find his diary, which contained incriminating statements, did not render him incompetent. Second, his memory condition was not known to the police, and consent will only be involuntary if obtained by duress or coercion, neither of which were present here.
D is incorrect. The search that uncovered the diary was consented to, the statement in the diary was freely and voluntarily made, not the result of police compulsion. As such, the privilege against self-incrimination does not bar it as evidence against the defendant.