Fifth Amend privilege against compelled testimony

Question 1

Who can assert?

Answer 1

Anyone in any type of case, where under oath and response might tend to incriminate him.

• MUST assert the privilege the 1st time the question is asked, or you will have waived the privilege for subsequent criminal prosecutions
• mus be claimed in civil proceedings to prevent it from being waived in later criminal prosecution

Question 2

Scope of the protection

Answer 2

Protects citizens from compelled testimony.

But NOT physical evidence; i.e blood, handwriting, voice, hair

Question 3

Prosecutorial conduct

Answer 3

Unvonstitutional for prosecutor to make negative comment on the D’s failure to testify or on D choosing to remain silent “after” Miranda warnings. (before can comment)
- exception - if D opens door (defense asserts D could not explain his side)

Harmless error test is applied, if prosecutor impermissibly comments.

Question 4

Eliminated (3 ways)

Answer 4

Under grant of immunity

No possibility of incrimination (statute of limitations has run)

Waiver (D takes stand)