Criminal Procedure AMP - Privilege Against Self-Incrimination Flashcards
The following may assert the Fifth Amendment privilege against self-incrimination:
A Only natural persons who are defendants
B Natural persons
C Natural persons, corporations, and partnerships
D Natural persons and corporations
B
Only natural persons may assert the privilege against self-incrimination. Thus, it is incorrect to state that corporations or partnerships may assert the privilege. It is also incorrect to state that only natural persons who are defendants may assert the privilege. The privilege may be asserted by a defendant, witness, or party if the answer to a question might tend to incriminate that person. QUESTION ID: R0079A Additional Learning
Which of the following statements is correct with regard to a defendant who chooses not to testify at her criminal trial?
A The prosecutor may ordinarily comment on the defendant’s failure to testify
B The jury may draw whatever inference they please
C The judge may warn the jury not to draw an adverse inference, even if the defendant objects to that instruction
C
If a defendant chooses to remain silent at trial, the judge may warn the jury not to draw an adverse inference, even over the defendant’s objection. The defendant is entitled to have the judge instruct the jury that they can draw no adverse inference from her failure to testify, but has no ability to prevent the judge from giving such an instruction. (Why would the defendant want to prevent the instruction? So that the judge does not plant the idea in the jurors’ heads that the defendant did have something to hide and that is why she did not take the stand, despite the judge’s instruction.) The jury may not draw an adverse inference from the defendant’s failure to testify; thus, the choice indicating they may draw whatever inference they please is incorrect. Moreover, a prosecutor may not ordinarily comment on the defendant’s failure to testify at trial. This rule is in place to protect the privilege against self-incrimination. However, it is incorrect to say that the prosecutor can never comment on the defendant’s failure to testify. Almost every legal rule has its exception, and this rule has an exception that applies when the defense asserts that the defendant was not allowed to explain her side of the story. In that case, the prosecution can comment that the defendant had an opportunity to take the stand to explain and chose not to. QUESTION ID: R0083A Additional Learning
Which of the following statements about invoking the privilege against self-incrimination is correct?
A A criminal defendant may invoke the privilege by refusing to take the witness stand but a witness may not
B A witness may invoke the privilege by refusing to take the witness stand but a defendant may not
C Either a criminal defendant or a witness may invoke the privilege by refusing to take the witness stand
A
It is true that a criminal defendant may invoke the privilege by refusing to take the witness stand but a witness may not. Only a criminal defendant has the right to refuse to testify; a witness must be sworn in before invoking the privilege, and must invoke it as to each question to which it applies. Thus the choices indicating that a witness may invoke the privilege by refusing to take the witness stand are therefore incorrect. QUESTION ID: R0081B Additional Learning
Who may assert the privilege against self-incrimination?
A Any natural or artificial person
B Only defendants
C Only natural persons
D Only natural persons who are defendants
C
Only natural persons may assert the privilege against self-incrimination. Artificial persons, such as corporations or partnerships, cannot assert the privilege. It is not true that only defendants or only natural persons who are defendants may assert the privilege. The privilege may be asserted by a defendant, witness, or party if the answer to a question might tend to incriminate that person. QUESTION ID: R0079 Additional Learning
The privilege against self-incrimination protects:
A Natural persons
B Only a defendant, whether a natural person or organization
C Natural persons and corporations, regardless of whether they are defendants
A
Only natural persons may assert the privilege against self-incrimination. Thus, it is incorrect to state that corporations can assert the privilege. It is also incorrect to state that only a defendant may assert the privilege. The privilege may be asserted by a defendant, witness, or party if the answer to a question might tend to incriminate that person. QUESTION ID: R0079B Additional Learning
If a criminal defendant chooses not to testify at trial, the _______________ the defendant’s silence.
A Jury may consider
B Judge may not advise the jury not to draw conclusions about
C Prosecutor ordinarily may not comment on
C
If a criminal defendant chooses not to testify, the prosecutor ordinarily may not comment on the defendant’s failure to testify at trial. This rule is in place to protect the privilege against self-incrimination. An exception applies when the defense asserts that the defendant was not allowed to explain her side of the story or if the defense attorney otherwise offers a different explanation for why the defendant did not take the stand. In that case, the prosecution can comment that the defendant had an opportunity to take the stand to explain and chose not to. The judge MAY advise the jury not to draw conclusions about the defendant’s failure to take the stand, and this is true even over the defendant’s objection. The jury may NOT consider the fact that the defendant did not take the stand. QUESTION ID: R0083B Additional Learning
When may the privilege against self-incrimination be asserted?
A Only at criminal proceedings
B Only at trial
C At a civil proceeding, only if it follows a criminal proceeding
D At both civil and criminal proceedings
D
The privilege against self-incrimination may be asserted at both civil and criminal proceedings. A person may refuse to answer a question at any proceeding where his response might link him in a chain of evidence needed to prosecute him. It should be noted, however, that if an individual fails to claim the privilege and answers a question in a civil proceeding, he cannot later bar that evidence by asserting the privilege in a criminal proceeding. The privilege against self-incrimination may not be asserted only at trial. A person may assert the privilege in any proceeding in which testimony that could tend to incriminate is sought. As stated above, the privilege may not be asserted only at criminal proceedings. The privilege may be claimed in civil proceedings as well. It is not required that a civil proceeding follow criminal proceeding in order to assert the privilege in the civil proceeding. The order of the proceedings has no effect. QUESTION ID: R0080 Additional Learning
For Fourteenth Amendment purposes, a confession is involuntary only if it is the product of:
A Mental disease
B Immaturity
C Official compulsion
C
For Fourteenth Amendment purposes, a confession is involuntary only if it is the product of some official compulsion. Mental disease is not an act of official compulsion. Accordingly, a confession is not necessarily rendered involuntary and thus inadmissible under the Fourteenth Amendment merely because it was prompted by a mental disease. In determining whether a confession is voluntary (i.e., an act of free will), a court must look at the totality of the circumstances, including factors such as: the suspect’s age, education, and mental and physical condition, along with the setting, duration, and manner of police interrogation. While immaturity may play a role in determining whether a confession is voluntary, it is by no means the only factor. QUESTION ID: R0001A Additional Learning
The __________ prohibits the government from compelling self-incriminating testimony.
A Sixth Amendment
B Fourth Amendment
C Seventh Amendment
D Fifth Amendment
D
The Fifth Amendment, among other things, prohibits the government from compelling self-incriminating testimony. The Fifth Amendment prohibition is applicable to the states through the Due Process Clause of the Fourteenth Amendment. The Fourth Amendment, among other things, provides a right against unreasonable searches and seizures. The Sixth Amendment, among other things, guarantees the right to counsel. The Seventh Amendment provides for rights relating to trial. QUESTION ID: R0078 Additional Learning
To be considered involuntary from a constitutional standpoint, a confession must be the product of __________.
A Immaturity
B Mental disease
C Official compulsion
C
For Fourteenth Amendment purposes, a confession can be considered involuntary only if it is made in response to some official compulsion. Mental disease is not an act of official compulsion. Accordingly, a confession is not necessarily rendered involuntary and thus inadmissible under the Fourteenth Amendment merely because it was prompted by a mental disease. In determining whether a confession is voluntary (i.e., an act of free will), a court must look at the totality of the circumstances, including factors such as: the suspect’s age, education, and mental and physical condition, along with the setting, duration, and manner of police interrogation. While immaturity may play a role in determining whether a confession is voluntary, it is by no means the only factor. QUESTION ID: R0001B Additional Learninga
The Fifth Amendment protection against self-incrimination protects __________ evidence.
A Testimonial
B Real
C Physical
A
The Fifth Amendment privilege protects testimonial or communicative evidence. For a communication to be considered testimonial, it must explicitly relate a factual assertion or disclose information. Thus, for example, the government may not compel a person to write down his bank account numbers because doing so would disclose information and thus be considered testimonial. The Fifth Amendment privilege does NOT protect real or physical evidence, so, for example, a state may require a person to produce blood samples, handwriting exemplars, or voice samples. QUESTION ID: R0082A Additional Learning
Which constitutional Amendment protects against testimonial self-incrimination?
A Sixth Amendment
B Fifth Amendment
C First Amendment
D Fourth Amendment
B
The Fifth Amendment, among other things, prohibits the government from compelling self-incriminating testimony. The Fifth Amendment prohibition is applicable to the states through the Due Process Clause of the Fourteenth Amendment. The Fourth Amendment, among other things, provides a right against unreasonable searches and seizures. The Sixth Amendment, among other things, guarantees the right to counsel. The First Amendment, among other things provides for freedom of speech, press, assembly, and religion. QUESTION ID: R0078B Additional Learning
Under the Fifth Amendment Privilege against self-incrimination, the government may not require a suspect to__________.
A give a blood sample
B produce a subpoenaed document
C produce a handwriting exemplar
D disclose all of his bank accounts
D
Because of the privilege against self-incrimination, a person may refuse to produce a written disclosure of his bank accounts. The Fifth Amendment privilege protects testimonial or communicative evidence. For a communication to be considered testimonial, it must explicitly relate a factual assertion or disclose information. Writing down one’s bank accounts would disclose information and thus be considered testimonial, permitting the person to raise the privilege. A person, however, may NOT refuse to produce a handwriting exemplar or a blood sample. The Fifth Amendment privilege does not protect real or physical evidence, so a state may require a person to produce blood samples, handwriting exemplars, or voice samples. A person also may NOT refuse to produce a subpoenaed document. A person served with a subpoena requiring production of a document cannot refuse to comply based on the Fifth Amendment privilege, because the act of producing the document is not testimonial. QUESTION ID: R0082 Additional Learning
Who waives the privilege against self-incrimination by taking the witness stand?
A A defendant
B Both the defendant and any witnesses
C Nobody
D A witness
A
The privilege against self-incrimination is waived by a criminal defendant when she takes the witness stand, but only to the extent that she is subject to cross-examination. By taking the stand, the defendant waives the privilege to the extent necessary to subject her to any cross-examination proper under the rules of evidence. The choices indicating that a witness waives the privilege once she takes the stand are incorrect. A criminal defendant’s taking the stand constitutes a waiver because a defendant may refuse to take the stand completely. A witness, on the other hand, cannot refuse to take the stand, but instead must take the stand and assert the privilege, if applicable, to the specific questions posed. A witness will be held to have waived the privilege only to the extent that she discloses incriminating information. If a witness discloses incriminating information, she can be compelled to reveal further information as long as the disclosure does not increase her risk of conviction or create a risk of conviction for a different offense. QUESTION ID: R0084A Additional Learning
If a defendant chooses to remain silent at trial, __________.
A the jury may draw an adverse inference from the defendant’s failure to testify
B the prosecutor may comment on the defendant’s failure to testify without penalty
C the prosecutor can never comment on the defendant’s failure to testify
Correct
D the judge may warn the jury not to draw an adverse inference, even over the defendant’s objection
D
If a defendant chooses to remain silent at trial, the judge may warn the jury not to draw an adverse inference, even over the defendant’s objection. The defendant is entitled to have the judge instruct the jury that they can draw no adverse inference from her failure to testify, but has no ability to prevent the judge from giving such an instruction. (Why would the defendant want to prevent the instruction? So that the judge does not plant the idea in the jurors’ heads that the defendant did have something to hide and that is why he did not take the stand, despite the judge’s instruction.) From the above, it is obvious that the jury may NOT draw an adverse inference from the defendant’s failure to testify.Moreover, a prosecutor may NOT ordinarily comment on the defendant’s failure to testify at trial. This rule is in place to protect the privilege against self-incrimination. However, it is incorrect to say that the prosecutor can NEVER comment on the defendant’s failure to testify. Almost every legal rule has its exception, and this rule has an exception that applies when the defense asserts that the defendant was not allowed to explain her side of the story. In that case, the prosecution can comment that the defendant had an opportunity to take the stand to explain and chose not to. QUESTION ID: R0083 Additional Learning
