Pleading the Fifth

Question 1

Who may invoke a 5A right to remain silent?

Answer 1

Anybody (e.g., D, witnesses, parties to civil proceedings)

Question 2

When may a 5A right to remain silent be invoked?

Answer 2

During any proceeding where individual is testifying under oath (e.g., Trial, hearing, deposition)

(SEE limited NY exception)

Question 3

NY QUESTION

In NY, when may a 5A right to remain silent NOT be invoked?

Answer 3

Cannot be asserted in NY grand jury proceeding

Question 4

What can invalidate the 5A right to remain silent?

Answer 4

If an individual responds to questions in civil proceedings, cannot exclude evidence in subsequent criminal proceeding

Question 5

What is the result of invocation of the 5A right to remain silent?

Answer 5

Invocation of 5th Am disallows negative prosecutorial comment on:

1. D’s decision not to testify at his trial, AND
2. D’s invocation of his right to silence or counsel.

(N.B. Prosecutor MAY comment negatively on D’s noncustodial silence during a police interrogation IF D did not invoke his Miranda rights!)

Question 6

When does the invocation of 5A right to silence NOT apply?

Answer 6

5th Am is a “testimonial” privilege, so it does NOT apply to:

1. State’s use of our bodies (e.g., blood sample) OR
2. The content of subpoenaed documents.

Question 7

What are the three ways to eliminate the 5A right to remain silent?

Answer 7

1. Grant of immunity (Prosecution can grant immunity that bars the use of your testimony, or anything derived from it, to convict you) (NOTE: you can still be convicted based on evidence obtained before the grant of immunity!);
2. Taking the stand (By taking the stand, D waives his right to take the fifth w/r/t anything within the scope of cross-examination); AND
3. If SoL has run on the underlying crime (Because in that case, person’s testimony would not expose him to prosecution!)

[N.B. See NY distinction to Immunity grant rule)

Question 8

What is the NY “transactional immunity” rule w/r/t grants of immunity to eliminate the 5A privilege?

Answer 8

NY transactional immunity rule is BROADER than “use and derivative use” immunity –

1. It shields witnesses from prosecution for any transaction they testified about in their immunized testimony; AND
2. Is automatically applied to grand jury testimony