20. Privilege Against Compelled Self-Incrimination

Question 1

true or false: the 5th amendment privilege against compelled self incrimination can be asserted by ANY person in ANY type of case

Answer 1

TRUE (not just for criminal defendants in criminal cases – though that’s the most common)

Question 2

true or false: corporations and partnerships can also assert the privilege as well as people.

Answer 2

FALSE (only NATURAL persons may assert the privilege)

Question 3

when may the 5th amendment privilege be asserted?

Answer 3

whenever a person’s response to a question might furnish a link in the chain of evidence needed to prosecute them
**NOTE = must be claimed in civil proceedings to prevent it from being waived in a later criminal case

Question 4

what specific party has a right not to take the stand at trial/not be asked to do so?

Answer 4

ONLY the criminal defendant (any other party may be sworn in as a witness/asked questions without violating the privilege)

Question 5

true or false: furnishing one’s name after a Terry stop DOES violate the 5th amendment privilege against self incrimination.

Answer 5

FALSE (generally this poses no danger of incrimination)

Question 6

what specific kind of evidence does the 5th amendment protect?

Answer 6

ONLY testimonial/communicative evidence

Question 7

what makes a communication “testimonial” evidence?

Answer 7

when that communication relates a factual assertion or discloses information

Question 8

true or false: the prosecution cannot compel evidence of a person’s blood samples, handwriting, voice, and hair under the privilege against self incrimination.

Answer 8

FALSE (this is NON-testimonial evidence that the prosecution CAN compel without violating the privilege)

Question 9

true or false: it is constitutionally valid for police to take a DNA cheek swab after an arrest for a serious crime (doesn’t violate 5th amendment).

Answer 9

TRUE

Question 10

true or false: a person compelled by subpoena to produce documents with incriminating info generally has NO basis for asserting the privilege to refuse to comply with the subpoena.

Answer 10

TRUE (this is NOT testimonial evidence – the act of producing does not involve testimonial self incrimination)

Question 11

true or false: the privilege does NOT protect against communications of incriminating information made in the past.

Answer 11

TRUE (only protects against being compelled to communicate presently)

Question 12

when does a VIOLATION of the privilege occur?

Answer 12

only once a person’s compelled statements are USED AGAINST them in a criminal case

Question 13

true or false: a prosecutor may NOT comment on a defendant’s silence after being arrested and read their Miranda warnings.

Answer 13

TRUE

Question 14

true or false: generally, a prosecutor MAY comment on a defendant’s failure to testify at trial.

Answer 14

FALSE

Question 15

what is the one situation where a prosecutor CAN comment on a defendant’s failure to testify at trial?

Answer 15

when their comment is in response to defense counsel’s assertion that the defendant was NOT allowed to tell their side of the story

Question 16

true or false: a prosecutor may NOT comment on a defendant’s silence before they were read their Miranda warnings.

Answer 16

FALSE (silence before MWs CAN be commented on, silence AFTER cannot)

Question 17

what test applies if a prosecutor wrongfully comments on a defendant’s silence?

Answer 17

the harmless error test

Question 18

true or false: a witness CAN be compelled to answer questions if granted adequate immunity from prosecution.

Answer 18

TRUE

Question 19

what is “use and derivative use” immunity?

Answer 19

immunity that guarantees the witness’s testimony and evidence located by means of testimony will NOT be used against them

Question 20

when CAN a prosecutor use evidence against an immunized witness in a later prosecution?

Answer 20

only if they can show that the evidence to be used against the witness was derived from a source INDEPENDENT of the immunized testimony

Question 21

true or false: immunized testimony may not be used for impeachment of a defendant’s testimony at trial.

Answer 21

TRUE (immunized testimony is NOT voluntary)

Question 22

true or false: immunized statements cannot be used in a trial for perjury.

Answer 22

FALSE (regardless if statements are true or untrue)

Question 23

when will a person NOT have a privilege against self incrimination?

Answer 23

when there is NO possibility of of incrimination (ie–SoL has run, etc)

Question 24

to what extent does a criminal defendant waive the privilege by taking the stand?

Answer 24

only to the extent necessary to subject them to any cross examination

Question 25

true or false: a witness waives the privilege ONLY IF they disclose incriminating information at trial

Answer 25

TRUE (no incrimination = no waiver)