5th Amendment Privilege

Question 1

Who and under what circumstances can someone take the Fifth?

Answer 1

Anyone can take the Fifth

In any proceeding in which an individual testifies under oath

NOTE: a failure to invoke the privilege in a civil proceeding will preclude use of the privilege at a later criminal proceeding

Scope:

• testimonial privilege
• disallows negative prosecutorial comment on a defendants 1) decision not to testify at his trial; or 2) invocation of his right to silence or counsel

NOTE: a prosecutor may comment on a defendant’s failure to take the stand if it is in response to the defense counsel’s assertion that the defendant was “not allowed to explain his side of the story”

Standard: Harmless error test

Question 2

How is the 5th privilege eliminated or waived?

Answer 2

Grant of immunity

• “use and derivative use” immunity, which bars government from using your testimony or anything derived from it to convict you
• can still be convicted based on evidence obtained prior to the immunity

Taking the stand

• waives the ability to take the Fifth as to anything properly within the scope of cross-examination

Statute of limitations

• unavailable if the statute of limitations has run on the underlying crime
• witness’s testimony could not expose him to criminal prosecution