Fifth Amendment Privilege against Compelled Testimony Flashcards
When are you entitled to a Fifth Amendment privilege against self-incrimination?
In any type of case, if anyone asked under oath, wherein the response might tend to conviction.
When must you assert the 5th privilege against self-incrimination?
The first time you are asked the question, otherwise you will have waived your Fifth Amendment privilege for all subsequent criminal prosecutions.
What if you are in a civil proceeding, must you assert the 5th to prevent the privilege from being waived in later criminal proceedings?
Yes.
What if an individual responds to the questions instead of claiming the privilege during a civil proceeding, can he later bar that evidence on Fifth Amendment grounds?
No.
What does the Fifth Amendment protect against?
Compelled testimony
Does the Fifth Amendment protect against the use of physical evidence in ways to incriminate them?
No.
What are some examples of non-testimonial evidence the prosecution can compel a person to produce?
Blood sample, handwriting sample, voice sample, hair sample.
Can a prosecutor comment on a defendant’s failure to testify or choosing to remain silent after given Miranda warnings?
Not in a negative fashion insinuating guilt, but he can comment on the defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that defendant was not allowed to explain his side of the story.
What will happen if a prosecutor impermissible comments on a defendant’s silence?
The harmless error test applies
When can the Fifth Amendment privilege be eliminated?
- Under grant of immunity
- No possibility of incrimination
e.g. statute of limitations has run on underlying crime - Waiver
Criminal defendant who takes the witness stand waives the Fifth Amendment privilege to all legitimate subjects of cross examination.
