5th Am Right to Counsel Beyond Miranda

Question 1

governing rule of privilege against self incrimination

Answer 1

o governing rule (5th Am): no person shall be compelled in any criminal case to be a witness against himself…for the privilege against self-incrimination to apply, the right must be asserted:
 (1) by an individual (not an entity)
 (2) who has been compelled
 (3) for whom there exists the possibility of incrimination, AND
 (4) where what is being sought is testimonial (see clarifications below)

Question 2

rule and exception for physical evidence as “testimonial” evidence

Answer 2

 rule: the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it (Schmerber)
• so, in general, the Fifth Amendment right against compelled self-incrimination provides no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture
• however, this distinction does not extend to physical evidence, that is directed at eliciting responses that are essentially testimonial in nature (ex: lie detector test that measures bodily responses to assess truthfulness of statements)
• ex) distinguish reading off a card in a lineup (not testimonial) from being asked what you said that night (the response would be testimonial)

Question 3

rule for testimonial nature of a lineup

Answer 3

 rule: requiring a suspect to participate in a lineup does not violate the constitutional protection against self-incrimination (Wade)
• being forced to appear in a lineup constitutes compulsion for the accused to exhibit his physical characteristics not to disclose any knowledge that he might have – disclosure of knowledge that the accused has would be testimonial in nature

Question 4

rule for release of bank records and their testimonial nature

Answer 4

 rule: compelling a defendant to sign a form releasing bank records, where the government stipulated that the defendant was not admitting the presence of the bank account via signing the form, was not testimonial because the act of signing did not convey information or assert facts (Doe)

Question 5

commenting on defendant’s invocation of right to remain silent

Answer 5

 rule: it is a violation of the 5th Am for the prosecution to comment on defendant’s silence or for the trial judge to instruct the jury that the defendant’s silence can be evidence of guilt – because that encourages incriminating inferences from the jury (Griffin)

Question 6

distinguish review of statements leading to civil vs criminal liability

Answer 6

 rule: the fact that a statement could lead to civil liability and even social stigma is not enough to trigger the privilege unless there was also the possibility of criminal liability (Ullman)
• if the government says it’s a criminal penalty, the court will believe them (Ward)
• if the government says it’s a civil penalty, the court will analyze under the Kennedy v Mendoza (crim vs civil) factors to see if it is actually criminal, regardless of what the government says (Ward) – see below

Question 7

rehab programs and testimonial statements

Answer 7

 rule: a rehab program where you are required admit to past crimes is insufficient to constitute compulsion (McKune)

Question 8

when can this privilege be asserted

Answer 8

 rule: the privilege may be asserted in any proceeding, civil or criminal, formal or informal, where the answers might incriminate an individual in a future criminal proceeding
• protects against disclosures that the person reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used even if the statement itself is not incriminating
o ex) disclosure of one’s name in most situation is not incriminating and won’t lead to other incriminating evidence; but disclosure of one’s name is incriminating in nature where the case revolves around the use of a fake ID

Question 9

rules for use of business records

Answer 9

 rule: the contents of business records ordinarily are not privileged because they are created voluntarily and without compulsion (Fisher)
• however, the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents, which is essentially a set of underlying admissions (Hubbell)

• collective entity doctrine: records of a collective entity (i.e. a business) are not private – representatives of a collective entity act as agents and the official records and documents of the organization are held by them in a representative rather than in a personal capacity and cannot be the subject of the personal privilege against self-incrimination even though production of the papers might tend to incriminate them personally (Braswell)
o if you have incorporated, there is no 5th Am. protection because of the governmental interest in being able to investigate corps
o ex) the govt can only say “the corp turned over the docs to us,” not “Braswell (as custodian of the business records) turned over the docs to us” – goes for saying he produced the docs or that a subpoena was served on him to produce the docs

Question 10

transactional vs use and derivative use immunity

Answer 10

 transactional immunity: a promise to the person that he or she will not be prosecuted for offenses related to the compelled testimony (really only used in TV shows)

 use and derivative use immunity: promises the person that the government will not use the statements granted under immunity, or anything derived from those statements, in a criminal prosecution
• rule: when a person afforded use and derivative use immunity is subsequently prosecuted, the State has the burden of proof to show that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony (Kastigar)