15. The Fifth Amendment Privilege Against Self-Incrimination

Question 1

Who can “take the Fifth?”

Answer 1

Anyone

Question 2

When can someone “take the Fifth?”

Answer 2

The privilege can be asserted in any proceeding in which an individual testifies under oath.

Question 3

Can the failure to assert the privilege in a civil proceeding undermine the ability to assert it in a later criminal proceeding?

Answer 3

Yes. If an individual responds to questions in a civil proceeding, he cannot exclude that evidence in a subsequent criminal proceeding on self-incrimination grounds.

Question 4

What is the scope of this “testimonial” privilege?

Answer 4

Because this is a testimonial privilege, it disallows negative prosecutorial comment on:

(1) a defendant’s decision not testify at his trial; and
(2) a defendant’s invocation of his right to silence or counsel.

Because this is a testimonial privilege, it does not apply to:

(1) the state’s use of our bodies; or
(2) the content of documents whose production was mandated by subpoena.

Question 5

The three ways to eliminate the privilege:

Answer 5

1. Grant of immunity: Prosecutors can grant “use and derivative use” immunity, which bars the government from using your testimony or anything derived from it to convict you.
2. Taking the stand: By taking the stand, the defendant waives the ability to “take the Fifth” as to anything properly within the scope of cross examination.
3. Statute of Limitations: The privilege is unavailable if the statute of limitations has run on the underlying crime since, in this circumstance, a witness’ testimony could not expose him or her to criminal prosecution

Question 6

NY’s Transactional Immunity

Answer 6

NEW YORK uses “transactional” immunity, which is broader than “use and derivative use” immunity since it shields witnesses from prosecution for any transaction they testified about in their immunized testimony.

Witnesses in grand jury proceedings automatically receive transactional immunity for their testimony.