Fifth Amendment Against Self-Incrimination

Question 1

Who can take it

Answer 1

Anyone (D, witness, parties)

Question 2

When?

Answer 2

in any proceeding in which an individual testifies under oath

Question 3

Failure to raise in a civil proceeding waive it in a criminal?

Answer 3

Yes, he cannot exclude in a subsequent crim proceeding if raised in a civil

Question 4

What is the scope

Answer 4

Applies to testimony–not bodies

disallows negative prosecutorial comment on decision not to testify

Question 5

Eliminating the Privilige

Answer 5

1. Grant of immunity: Prosecutors can grant “use and derivative use” immunity, which bars the government from using your testimony or anything derived from it to convict you.
   
   • An individual can be convicted based on evidence obtained prior to the grant of immunity.
2. Taking the stand: By taking the stand, the defendant waives the ability to “take the Fifth” as to anything properly within the scope of cross examination.
3. Statute of Limitations: The privilege is unavailable if the statute of limitations has run on the underlying crime since, in this circumstance, a witness’s testimony could not expose him or her to criminal prosecution.