Close X

Fifth Amendment Appeals

Illegally-Obtained Confession Appeals

The Fifth Amendment to the United States, as well as a similar provision in the Georgia Constitution, protect us from the coercive tactics that law enforcement sometimes uses to obtain statements from people suspected of committing a crime. Although the Fifth Amendment also contains the double jeopardy clause and other clauses, this section will focus on its protections relating to illegally obtained admissions and confessions. Ben is a Criminal Appeals Attorney and Criminal Defense Attorney in Cobb County and Georgia that encounters these issues on a frequent basis.

Miranda v. Arizona

Probably the most common misconception in the law relates to the Miranda warnings. The general public, perhaps from the way it is portrayed on television and in the movies, believe that the warnings must be automatically given when someone is arrested. Even further, people incorrectly believe that the lack of the warnings automatically means a case will be dismissed. 

In fact, Miranda only applies when a person is subject to what is called custodial interrogation. This means that the person (a) must be under arrest, and (b) questioned, or the functional equivalent thereof, by law enforcement. Overall, Miranda has nothing to do with the legality of arrests, it deals with the legality of statements made by arrestees. 

When a person has been arrested and the cops want to question him or her, they must first be advised of the following:

1. That they have a right to remain silent.

2. That anything they say can and will be used against them.

3. That they have the right to have an attorney present with them during any questioning.

4. That if they cannot afford an attorney, the court system will appoint an attorney to represent them.

Once the warnings have been provided, and absent any other legal problems with the interrogation, any statements made by the arrestee can later be used against them in a prosecution. When the warnings are not provided in a situation where they would be required, any statements made should be ruled inadmissible at the defendant's trial. 

Most importantly, however, is that whenever a suspect unequivocally invokes their right to silence or right to counsel, all questioning must cease. If the cops do not honor the invocation of the right(s), any statements obtained thereafter are inadmissible at trial.  


The Fifth Amendment prohibits the introduction into evidence of statements made by a defendant that were obtained involuntarily. This does not mean that the defendant was literally forced to make the statement, though it could. It is more broad than that, and generally includes the following sub-categories:

  • physical duress 
  • mental incompetency
  • hope of benefit
  • fear of injury

The most commonly litigated issue relating to voluntariness is whether the interrogating officers held out a hope of benefit to the defendant in order to induce the statement. The hope of benefit usually held out is that of lesser punishment. Therefore, if an interrogating officer directly tells you that confessing will lead to less prison time, any subsequent statement is involuntary. These issues are not usually so cut and dry, with direct statements promising leniency. Courts have to examine the individual circumstances, and in particular the precise words used, to determine whether a hope of benefit was made. 

Involuntary statements are unreliable in the eyes of the law because of the possibility, or probability, that the statements were made not because of their truth, but because they were induced by some other means. On the other hand, any incriminating statement is potentially very damaging evidence against a defendant. Therefore, there are great risks to a defendant's right to a fair trial by the admission of such statements, and if the trial court determines a statement was made involuntarily it will be excluded from trial.

Jackson-Denno Hearings

The admissibility of a defendant's statements is litigated before trial for a threshold determination before the trial judge as to whether the statements were made voluntarily and otherwise not in violation of the Fifth Amendment. This takes place at what is called a Jackson-Denno hearing. Here, the State has the burden of proving that the statements were legally obtained. The State will typically present evidence, such as the testimony of the interrogating officer(s) and the audio/video recording of the interrogation.

The defendant can also introduce evidence and testimony at such a hearing. If the defendant is arguing that some sort of mental deficiency rendered him or her unable to meaningfully understand the Miranda warnings, or made them susceptible to coercive police interrogation tactics, it may be necessary to present some form of expert testimony on this point. The defendant can also testify at this hearing, and can do so without any fear that his or her statements can then be used against them at trial. 

If the trial judge rules that the statement is admissible at trial, upon a defendant's request the judge will give a litany of jury instructions to the jury. These instructions require the jury to consider whether the statements were made voluntarily and to disregard them if they find they were not so made. 

Erroneous rulings relating to a defendant's Fifth Amendment rights need to be challenged on appeal. If this has happened to you or someone you know, hire an experienced Georgia Criminal Appeals Lawyer immediately. 


"Without a Doubt the Best"

"I would highly recommend Ben. There were not any surprises or extra costs. He was very clear on what to expect. Even more impressive was what happened before I went to court and while in court, everything happened exactly as Ben had told me it would. When I was in the court room and Ben needed to make things happen, he was so articulate I felt as though I had an entire team of lawyers."

"Truly an attorney with not just intellect but heart!"

"When Mr. Goldberg came into my life, he went against all odds, believed in my innocence, fought for my justice, and supported me as my lawyer and my friend. I personally believe that when Mr. Goldberg chose to practice law, his goal was not money nor prestige, but was only the well-being of the client. More specifically, he values the lives of the individuals he represents and provides them with the best defense to see to it that justice is served."

The Law Office of Ben Goldberg, LLC
404-424-9406 (fax)
Mon: 08:30am - 06:00pm
Tue: 08:30am - 06:00pm
Wed: 08:30am - 06:00pm
Thu: 08:30am - 06:00pm
Fri: 08:30am - 06:00pm