5th Amendment Privilege Against Compelled Testimony

Question 1

Who can “plead the 5th”?

Answer 1

Anyone who is testifying under oath.

Defendants who actually take the stand cannot plead the fifth on the stand.

Question 2

Can a person plead the fifth in a grand jury proceeding?

Answer 2

Not in NY!

Question 3

If someone gives sworn testimony can they plead the 5th in a later proceeding when asked the same question?

Answer 3

No - once you testify under oath about something, you can’t claim the privilege anymore.

Question 4

Can the prosecution raise a negative inference about D’s decision not to testify?

Answer 4

No. Prosecution cannot raise a negative inference about a defendant’s decision to not testify.

Question 5

Can the prosecution raise a negative inference about D’s invocation of right to counsel?

Answer 5

No. Prosecution cannot raise a negative inference about a defendant’s decision to invoke his right to counsel.

Question 6

Does introduction of a tattoo, scar, or other physical attribute of a defendant violate his privilege against compelled self-incrimination?

Answer 6

No - the prosecution can use a defendant’s body without violating the privilege against compelled self-incrimination.

Question 7

What does it mean for the prosecution to grant a witness immunity?

Answer 7

Through “use and derivative immunity” the government cannot use the testimony or anything derived from it to convict you.

But - they can use any evidence they got before you testified against you.

Question 8

What is transactional immunity (NY)?

Answer 8

Shields witnesses from prosecution for any transaction they testified about in their immunized testimony.

If you testify about your involvement in a robbery against someone else - the prosecution cannot prosecute you for the robbery.

Question 9

What are a criminal defendant’s privileges once they take the stand to testify?

Answer 9

Waived - they must answer all questions asked of them (so long as properly in scope) - even if the response would be incriminating.

Question 10

What privilege does a person have after the statute of limitations has run on the substantive crime?

Answer 10

None - because they can’t be prosecuted anyway. They can be forced to testify about their criminal activity after the statute of limitations has run.