5th Amendment

Question 1

Custodian of Corporate Records

Answer 1

the person has 5th A protection but this does NOT extend to production of corporate records

Question 2

What is the test for pre-trial/indictment lineup admissibility?

Answer 2

exclude if:

1. impermissibly suggestive
2. substantial likelihood of misID

exception:
□ necessary under circumstances (e.g., lineup is impractical because witness is near death), or
□ ID is reliable based on a TOTC assessment
-opportunity to view Δ at scene,
-ease with which witness can ID Δ,
-prior misidentifications
□independent source

Question 3

Can the court require a D to show how he walks? does it violate right against self-incrimination

Answer 3

yes; it does not violate the right because it not testimonial.

Question 4

If witness receives derivative use immunity, can the testimony be used in civil prosecution?
what can it not be used in?

Answer 4

yes to civil; cannot be used in prosecution

Question 5

can a witness assert 5th in a civil proceeding?

Answer 5

yes - if the evidence might be used in a future criminal prosecution

Question 6

what the exceptions to miranda warning requirement?

Answer 6

○ public safety: Warnings need not be given if necessary for public safety

○ routine booking questions (e.g., booking, probation interview) is not considered interrogation

○ undercover police: Warning not required when suspect is unaware he is speaking to a police informant and gives statement vol

Question 7

what the exceptions to resuming interro after D invokes rights to counsel? right to silence?

Answer 7

□ suspect voluntarily initiates communication with police (including spontaneous statements) or
14-day or more break in custody and fresh Miranda warnings given
———
1) suspect indicates desire to speak, then subsequent interrogation lawful if
a) suspect not coerced, and
Miranda warnings are given again

Question 8

can PO reintiate interro after right to silence invoked for unrelated crime?

Answer 8

yes after re - miranda

Question 9

when D waives, does he need to know the nature of the charges and condition of the victim, if applicable?

Answer 9

no

Question 10

is miranda violation subject to fruit of poisonous tree doctrine?

if miranda violation, is

• physical evidence obtained from the confression admissible?
• are incrim st?
• confessions?

Answer 10

no not subject

yes if not coerced

yes, if second MW

no, 2onfessions are not if clear police were trying to get around it

Question 11

what are the types of immunity?

Answer 11

a. Use and derivative immunity: protects immunized Δ from use of the testimony and derived evidence in subsequent prosecution against the witness
i. (evidence from independent source may still be used)
ii. Can still be used in civil trial
iii. Govt is only required const. to provide this not TI
Transactional immunity: completely protects D from future prosecution itself for the entire transaction about which D testified/crimes related to the testimony

Question 12

does double jeopardy apply to a subsequent civil trial?

Answer 12

no

Question 13

what is considered the same crime under Blockburger/double jeorparyd?

Answer 13

f D’s conduct can be prosecuted as two crimes, the two crimes are the same offense unless each crime requires proof of a unique element that the other DOES NOT have Blockburger

Question 14

does jeopardy attached to a greater offense bar retrial for lesser offense?

Answer 14

yes

Question 15

does jeopardy attached to a lesser offense bar retrial for greateroffense?

Answer 15

yes unless unless at the time jeopardy attached, a necessary event for the greater offense has not yet happened

Question 16

what are the exceptions for double jeopardy?

Answer 16

a. Legislative intent: 2x punishments OK if statute provides (e.g., robbery + use of weapon)
b. New evidence for greater offense becomes available since prosecution of lesser offense (now different set of facts)

Question 17

when does jeopardy attach?

in what types of trials/proceedings does it not attach?

Answer 17

Jeopardy attaches when 1st witness sworn in (non-jury trial) or jury is impaneled (jury trial).

		1. Does not attach in civil proceedings (OK to have criminal and civil proceedings for same offense)
		2. Does not attach in grand jury proceedings

		1. Does not attach in civil proceedings (OK to have criminal and civil proceedings for same offense) 2. Does not attach in grand jury proceedings

Question 18

can credibility always be raised on cross?

Answer 18

yes