5th amend and compelled testimony

Question 1

5th amend. privilege

Answer 1

1) asked a question under oath
2) any type of case
3) wherein the response might tend to incriminate him
4) entitled to privilege
NOTE: can be anyone in any case, including civil and including witnesses

Question 2

Limitations on 5th amend. privilege

Answer 2

1) must assert the first time the question is asked or you waive it for all subsequent criminal prosecutions
2) must be claimed in civil proceedings to prevent from being waived for a later criminal prosecution
3) if respond to questions instead of claiming the privilege during a civil proceeding, cannot later bar that evidence on 5th amend. grounds

Question 3

Scope of 5th amend. privilege

Answer 3

1) citizens
2) compelled testimony
3) does not apply to physical evidence
(a) blood sample
(b) handwriting sample
(c) voice sample
(d) hair sample

Question 4

5th amend and prosecutorial conduct

Answer 4

1) cannot make negative comment on D’s failure to testify or on D’s choosing to remain silent after Miranda warnings
2) UNLESS D’s counsel asserts that D was unable to tell his side of the story
3) If D remains silent before Miranda warnings prosecutor may use his silence against him
4) when prosecutor impermissibly comments on a D’s silence, harmless error test applies

Question 5

Eliminating 5th amend. privilege

Answer 5

1) under grant of immunity
2) no possibility of incrimination: SOL has run
3) waiver: D takes the witness stand waives 5th to all legitimate subjects of cross-exam