5. Privilege Against Compelled Self-Incrimination (5A)

Question 1

Who may assert the privilege against compelled self-incrimination?

Answer 1

Natural persons

NOT corporations
NOT partnerships

Question 2

When must the privilege be asserted?

Answer 2

Any proceeding
- Must refuse to answer question that may link to evidence needed to prosecute D

Civil proceeding => Subsequent criminal proceeding
- Must assert in civil proceeding to prevent waiver of privilege in subsequent criminal proceeding

Question 3

How must defendant invoke privilege in court?

Answer 3

Avoid taking stand

Question 4

How must witness invoke privilege in court?

Answer 4

Take stand + invoke privilege

Question 5

What type of evidence does the privilege apply towards?

Answer 5

1) Testimonial
- Communications to prove events relevant towards later criminal prosecution
- Affidavits/Prior testimonies
- NOT observational/physical evidence

2) Compelled
- Governmental eliciting/coercing/inducing
- Interrogation/Polygraph/Subpoena

Question 6

What type of evidence does the privilege not apply towards?

Answer 6

Physical/real evidence

• Blood samples
• Handwriting exemplars
• Voice samples

Compulsory production of documents (subpoena)
- UNLESS protected by 5A privilege => Attorney-client privilege applies

Seizure + Use of incriminating docs
- Communications made in the past

Question 7

When does violation of the privilege occur?

Answer 7

After D’s self-incriminating statement is used against him in criminal case

Question 8

How may privilege be removed?

Answer 8

Elimination (‘Use and Derivative’ Immunity)

• Guarantees D’s testimony/evidence NOT to be used vs D in court
• Guarantees D’s testimony/evidence NOT to be used as impeachment vs D’s testimony (because such immunity is considered involuntary)
• UNLESS testimony/evidence can be obtained by ‘independent source’
• UNLESS D commits perjury
• UNLESS NO incrimination possible (SoL expires)

Waiver

• Defendant takes witness stand
• Witness discloses incriminating info

Question 9

How much evidence is required for the judge to prove a statement is self-incriminating?

Answer 9

Reasonable possibility

• NOT clear convincing evidence
• NOT preponderance of evidence

Question 10

What are opponent’s options if individual asserts privilege and refuses to answer opponent’s cross-examination?

Answer 10

Strike out individual’s previous direct testimony

- Opponent had NO opportunity to cross-examine individual due to privilege