20. Privilege Against Compelled Self-Incrimination Flashcards

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1
Q

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

A

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

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2
Q

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

A

FALSE (only NATURAL persons may assert the privilege)

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3
Q

when may the 5th amendment privilege be asserted?

A

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

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4
Q

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

A

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

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5
Q

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

A

FALSE (generally this poses no danger of incrimination)

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6
Q

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

A

ONLY testimonial/communicative evidence

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7
Q

what makes a communication “testimonial” evidence?

A

when that communication relates a factual assertion or discloses information

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8
Q

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

A

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

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9
Q

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).

A

TRUE

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10
Q

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.

A

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

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11
Q

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

A

TRUE (only protects against being compelled to communicate presently)

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12
Q

when does a VIOLATION of the privilege occur?

A

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

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13
Q

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

A

TRUE

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14
Q

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

A

FALSE

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15
Q

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

A

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

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16
Q

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

A

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

17
Q

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

A

the harmless error test

18
Q

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

A

TRUE

19
Q

what is “use and derivative use” immunity?

A

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

20
Q

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

A

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

21
Q

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

A

TRUE (immunized testimony is NOT voluntary)

22
Q

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

A

FALSE (regardless if statements are true or untrue)

23
Q

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

A

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

24
Q

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

A

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

25
Q

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

A

TRUE (no incrimination = no waiver)