5th A privilege against compelled testimony/self incrimination

Question 1

What type of case can privilege be asserted in?

Answer 1

any

Question 2

Who can it be asserted by?

Answer 2

anyone asked a Q under oath (in any type of case) wherein the response might tend to incriminate him

Question 3

What does crim D have the right to do?

Answer 3

not take the stand

Question 4

When must you assert privilege to avoid waiving?

Answer 4

first time question is asked

Question 5

If don’t assert privilege first time asked, waved for…

Answer 5

all subsequent criminal prosecutions

Question 6

Why must privilege be claimed in civil proceedings?

Answer 6

to prevent privilege from being waived for later criminal prosecution

Question 7

If individual responds to questions instead of claiming privilege during civil proceeding, he cannot…

Answer 7

later bar that evidence (in crim pros) on 5th A grounds

Question 8

Scope of protection: protects citizens from….

Answer 8

compelled testimony

Question 9

Scope of protection: does NOT protect citizens from having gov’t use…

Answer 9

physical evidence to incriminate them

e.g. can be subpoenaed to produce incriminating documents b.c act of producing is not testimonial

Question 10

Examples of non-testimonial evidence that prosecutor can compel person to produce (4)

Answer 10

blood sample
handwriting sample
voice sample
hair sample

Question 11

When does violation of privilege against compelled testimony/self-incrimination occur?

Answer 11

when compelled statement used against him in criminal case

only COMPELLED testimony is privileged

Question 12

Prosecutorial conduct: What is pros NOT allowed to do about D’s failure to testify?

Answer 12

unconstitutional to make a negative comment on D’s failure to testify OR on a D choosing to remain silent after being given Miranda warnings

Question 13

Prosecutorial conduct: Normally pros can’t make negative comment about D not testifying… exception

Answer 13

prosecutor CAN comment no D’s failure to take stand when in response to D counsel’s assertion that D was not allowed to explain his side of the story

Question 14

Prosecutorial conduct: if suspect chooses to remain silent BEFORE police read him his Miranda rights…

Answer 14

that silence CAN be used against him in court

Question 15

What test applies when prosecutor impermissibly comments on D’s silence?

Answer 15

harmless error; prosecutor’s conduct may not be fatal to otherwise sound conviction

Question 16

How can privilege be eliminated? (so that witness can be compelled to answer Qs)

Answer 16

1) under grant of immunity
2) no possibility of incrimination (e.g. statute of limitations)
3) waiver (crim D who takes stand waives privilege as to all legitimate subjects of cross examination)

Question 17

What can testimony under grand of immunity NOT be used for?

Answer 17

impeach D’s testimony at trial b/c immunized testimony is involuntary