_- CrimP 15

Question 1

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

Answer 1

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Question 2

Who may assert PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

Answer 2

Privilege agaisnt self-incrimiantion can be asserted by any person in any type of case when answer to question might tend to incriminate them.

The Fifth Amendment privilege against self-incrimination can be asserted by any person in any type of case.
Only natural persons may assert the privilege, not corporations or partnerships.
The privilege is personal and so may be asserted by a defendant, witness, or party only if the answer to the question might tend to incriminate them.

Question 3

WHEN PRIVILEGE MAY BE ASSERTED

Answer 3

A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them.

The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. SO IF THEY DO NOT CLAIM IT IN CIVIL, they WAIVE IT IN FUTURE CRIMINAL PROCEEDINGS.

Thus, if an individual responds to questions instead of claiming the privi- lege during a civil proceeding, they cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.

Question 4

METHOD FOR INVOKING PRIVILEGE

Answer 4

A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so. In any other situation, the privilege does not permit a person to avoid being sworn as a witness or being asked questions.

Rather, the person must listen to the questions and specifically invoke the privilege rather than answer the questions.

Note: Merely being required to furnish one’s name after a Terry stop generally does not violate the Fifth Amendment because disclosure of one’s name generally poses no danger of incrimination.

Question 5

Being Required to give one’s name

Answer 5

Being Required to give one’s name after TERRY Stop doesd NOT violate 5th amendment.

Question 6

SCOPE OF PROTECTION: what kind of Evidence?

Answer 6

Testimonial but Not Physical Evidence:
The Fifth Amendment privilege protects only testimonial or communicative evidence and not real or physical evidence.
For a suspect’s communication to be considered testimonial, it must relate a factual assertion or disclose information.
Examples of non-testimonial evidence that the prosecution can compel a person to produce include samples of a person’s blood, handwriting, voice, and hair.
A note on DNA collection: The Supreme Court held that it is constitutionally valid to take a DNA cheek swab after an arrest for a serious crime.

Question 7

5A privilege protects ___ or ___ evidence and not ____ evidence.

Answer 7

5A privilege protects testimmonial or communicative evidence and nnot real or physical evidence.

Question 8

Compulsory Production of Documents

Answer 8

A person served with a subpoena requiring production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply, because the act of producing the documents does NOT involve testimonial self-incrimination.

Question 9

Seizure of Incriminating Documents

Answer 9

The Fifth Amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person. The privilege protects against being compelled to commu- nicate information, not against disclosure of communication made in the past.

Question 10

When Does Violation Occur?

Answer 10

A violation of the Self-Incrimination Clause does not occur until a person’s compelled statements are used against them in a criminal case.

Question 11

PROHIBITION AGAINST BURDENS ON ASSERTION OF PRIVILEGE

Answer 11

Comments on Defendant’s silence

Question 12

Comments on Defendant’s silence

Answer 12

Pros may NOT comment on D’s silence after receiving Miranda warnigns or at trial.

• Pros can comment on D’s failutre to take stand when in response to Defens’s assertion that D was NOT allowed to explain story.
• If suspect remains silent BEFORE miranda warnigns, silence can be used against them.

Question 13

Comments on Defendant’s silence - Exception

Answer 13

A prosecutor can comment on a defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story.

Question 14

Comments on Defendant’s silence - Silence Before Miranda Warnings

Answer 14

Note that if a suspect chooses to remain silent before police read them their Miranda rights, that silence can be used against the suspect in court.

Question 15

Comments on Defendant’s silence: c. Harmless Error Test Applies

Answer 15

When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies.

Question 16

Penalties for Failure to Testify

Answer 16

The state may not chill exercise of the Fifth Amendment privilege against compelled self-incrimination by imposing penalties for failure to testify.

Question 17

ELIMINATION OF PRIVILEGE

Answer 17

• Grant of immunity
• No Possibility of Incrimination
• Scope of Immunity

Question 18

ELIMINATION OF PRIVILEGE: Grant of Immunity

Answer 18

A witness may be compelled to answer questions if granted adequate immunity from prosecution.

a. “Use and Derivative Use” Immunity Sufficient
“Use and derivative use” immunity guarantees that the witness’s testimony and evidence located by means of the testimony will not be used against the witness. However, the witness may still be prose- cuted if the prosecutor shows that the evidence to be used against the witness was derived from a source independent of the immunized testimony.

b. Immunized Testimony Involuntary
Testimony obtained by a promise of immunity is coerced and there- fore involuntary. Thus, immunized testimony may not be used for impeachment of a defendant’s testimony at trial. However, any immunized statements, whether true or untrue, can be used in a trial for perjury.

c. Use of Testimony by Another Sovereign Prohibited
Federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa.

Question 19

ELIMINATION OF PRIVILEGE: No Possibility of Incrimination

Answer 19

A person has no privilege against compelled self-incrimination if there is no possibility of incrimination (for example, statute of limita- tions has run).

Question 20

ELIMINATION OF PRIVILEGE: Scope of Immunity

Answer 20

Immunity extends only to the offenses to which the question relates and does not protect against perjury committed during the immunized testimony.

Question 21

WAIVER OF PRIVILEGE

Answer 21

A criminal defendant, by taking the witness stand, waives the privi- lege to the extent necessary to subject them to any cross-examina- tion. A witness waives the privilege only if they disclose incriminating information.