5th Amendment

Question 1

Can failure to assert the 5th in a civil proceeding undermine the ability to assert it in a later criminal proceeding?

Answer 1

• Yes
• If individual responds to questions in a civil proceeding, he cannot exclude that evidence in a subsequent criminal proceeding on compelled self incrimination grounds

Question 2

Scope of testimonial privilege under 5th Amendment

Answer 2

-Does not apply to state’s use of D’s body
Ex. Does not apply to the forcible extraction of blood or urine samples for prosecutorial use in a DUI case
-Prosecution can’t make comments in trial about decision not to testify, invoking right to remain silent, or right to counsel

Question 3

3 Ways to Eliminate 5th Amendment Privilege

Answer 3

1. Grant of Immunity
2. Defendant taking the stand
3. SOL - Unavailable it run on underlying crime