5th Amend. - Priv. against Self-Incrim. & 5th Amend. in Trial Context

Question 1

What does the 5th Amendment protect against?

Answer 1

1. Prohibits gov’t coercion of confessions
2. Prohibits unreliable identifications AND
3. Provides Privilege against Self Incrimination

Question 2

What is the rule?

Answer 2

No person shall be compelled in a criminal case to testify against himself

• Applies to states through the 14th amendment

Question 3

What type of evidence does the Privilege protect?

Answer 3

Testimonial Evidence only

• Nontestimonial phys. evidence is not protected

Question 4

What type of proceedings does the privilege extend to?

Answer 4

Extends to a witness in any proceeding

• Civil or Crimial
• Formal or Informal proceedings if the answers provide some reas. possibility of incriminating the witness in future crim. proceedings

Question 5

How does a Defendant invoke the privilege ?

Answer 5

By not taking the stand

• State can’t compell the defendant to testify
• Prosecution can’t bring the D’s failure to take the stand to the jury’s attention

Question 6

How does a witness invoke the privilege?

Answer 6

A witness may be compelled to take the stand

• can invoke the priv only in response to a specific question when there is some reas. possibility that answering will incriminate the witness
• BUT invoking after testimony has already been made may violate the D’s right to confrontation if it prevents adequate cross-examination

Question 7

How can 5th Amendment Privilege be waived by a defendant?

Answer 7

• D waives by taking the stand and answering questions
• NEVER by silence, D always has the right to remain silent

Question 8

How can 5th Amendment priv. be waived by a witness?

Answer 8

By disclosing self-incriminating info. in response to a specific question

Question 9

Scope of 5th Amendment Privilege in the Trial Context

Answer 9

1. D can refuse to test. at crim. trial
   
   • Can also refuse to answer quest. in other proceedings when the answer may incrim. him in future crim. proceedings
2. Does NOT prevent prosecutor from using prior conflicting statements to impeach the D once the D takes the stand
   
   • This is called “opening the door” by the D

Question 10

Admissions of Incrim. Statements made during court-ordered psychiatric exam.

Answer 10

Deemed involuntary & not admiss. at trial unless the D is given Miranda warnings b/f the interview and waives his rights

Question 11

Business papers vol. prepared by an indiv.

Answer 11

Not protected by 5th Amendment

Question 12

Transactional immunity protects a witness in what way?

Answer 12

Fully protects a witness from future prosecution for crimes related to her testimony

Question 13

Use/Derivative-use Immunity protects witness in what way?

Answer 13

Prohibits the use of the witnesses’ testimony against them

• SCOTUS has held that use immunity is all that is const. required to compel the testimony of a witness
• Testimony encouraged by promise of immunity is considered coerced & invol.

Question 14

Federal and State Immunity

Answer 14

Testimony under a grant of immunity can’t be used by another U.S. Jurisdiction to prosecute the defendant

• So, a states grant of immunity will preclude admission of the test. in a fed. proceeding

Question 15

Prosecutorial Comment

Answer 15

Prosecution can’t comment on the defendant’s exercise of the priv. against self-incrimination at trial

• It’s a per se reversible error