Crim Pro - Taking the 5th

Question 1

Who can “take the Fifth”?

Answer 1

ANYONE

e.g. Defendants, witnesses, parties to civil proceedings

Question 2

When can someone “take the Fifth?”

Answer 2

The privilege can be asserted in ANY proceeding in which an individual testifies UNDER OATH

e.g. trial, administrative hearing, Congressional Hearing

***NY - the privilege CANNOT be asserted in a GRAND JURY PROCEEDING

Question 3

If someone provides sworn testimony can they take the fifth in a SUBSEQUENT PROCEEDING when asked the same question?

Answer 3

NO. The privilege MUST BE ASSERTED at the FIRST OPPORTUNITY or it is FOREVER WAIVED
(e.g. if asked first in a civil proceeding and you answer, can’t claim the 5th in a subsequent criminal proceeding)

Question 4

What is the “Scope” of the testimonial privilege (under the 5th amendment) ?

Answer 4

(a) Because this is a TESTIMONIAL privilege, it DOES NOT apply to the state’s USE OF OUR BODIES
- –e.g. privilege doesnt apply to forcible extraction of blood or urine samples for prosecutorial use in a DUI case

(b) Because this is a TESTIMONIAL privilege, it also disallows negative prosecutorial comment on a D’s
(1) decision not to testify at his trial; or
(2) the invocation of his right to silence or counsel

Question 5

What are the ways to eliminate the Privilege?

Answer 5

3 ways

(1) GRANT OF IMMUNITY
2 kinds - use and derivative use, -transactional

(2) TAKE THE STAND - by taking stand, D waives the ability to “take the fifth” as to anything properly within the scope of Cross-Examination
(3) STATUTE OF LIMITATIONS - privilege is unavailable if S/L has run on the underlying crime since a witness’s testimony could not expose him to criminal prosecution

Question 6

What are the types of immunity a prosecutor can grant?

Answer 6

USE AND DERIVATIVE IMMUNITY - Prosecutors can grant :use and derivative use” immunity, which bars the govt from using your testimony or anything DERIVED from it to convict you
– (but note, this still leaves you open to prosecution for that same crime based on independent evidence - e.g. you talk about a robbery you were involved in, but independent of your testimony, prosecutor, through a different witness, uses footage from bank’s surveillance cameras he gathered from the scene to prosecute you - this is why “transactional” immunity is broader)

“TRANSACTIONAL IMMUNITY” (***NY USES THIS) which is broader than “USE and DERIVATIVE USE” immunity since it shields witnesses from prosecution for any TRANSACTION they testified about in their immunized testimony