Priv Against Self-Incrimination

Question 1

Does the Fifth Amendment’s self-incrimination clause protect testimony that could subject the witness to criminal prosecution in a foreign country?

Answer 1

No. The Fifth Amendment’s self-incrimination clause does not protect testimony that could subject the witness to criminal prosecution in a foreign country. The privilege applies only if the testimony could lead to prosecution in the United States.

Question 1

Is the Self-Incrimination Clause of the Fifth Amendment limited to a defendant in a criminal trial?

Answer 1

No. The Self-Incrimination Clause of the Fifth Amendment is not limited to the defendant in a criminal trial. The Self-Incrimination Clause covers witnesses in all criminal trials; an individual need not be the defendant to invoke the right. If a witness in a criminal trial incriminates himself, that testimony could then be used against the witness in a subsequent criminal proceeding against him. This is the type of self-incrimination against which the Fifth Amendment was designed to guard.

Question 2

Does an officer’s coercive interrogation of a suspect violate the suspect’s Fifth Amendment privilege against self-incrimination if the suspect’s confession is never used in a criminal case?

Answer 2

No. An interrogation does not constitute a criminal case. Although the right against self-incrimination can now be asserted in non-criminal cases, and witnesses can be compelled to testify with immunity for self-incriminating statements, these developments do not expand the scope of the Fifth Amendment.

Question 3

Does a violation of the Miranda rules provide a basis for a claim under 42 U.S.C. § 1983?

Answer 3

No. A violation of the Miranda rules does not provide a basis for a claim under 42 U.S.C. § 1983. Under § 1983, a plaintiff has a cause of action against any person who, acting under color of state law, deprives the plaintiff of rights secured by the Constitution or a federal statute. As Miranda v. Arizona, 384 U.S. 436 (1966), and this Court’s subsequent caselaw make clear, a Miranda violation is not itself a violation of the Fifth Amendment right against compelled self-incrimination. Rather, Miranda imposed prophylactic rules intended to protect that Fifth Amendment right. A Miranda violation is thus not a deprivation of a right secured by the Constitution for purposes of a § 1983 action.

Question 4

Does the Fourteenth Amendment prohibit the use in criminal proceedings of incriminating statements made by public employees under threat of termination?

Answer 4

Yes. The Fourteenth Amendment prohibits the use in criminal proceedings of incriminating statements made by public employees under threat of termination. In Boyd v. United States, 116 U.S. 616 (1886), this Court held that a statute requiring an individual to provide self-incriminating evidence on penalty of forfeiting property violated the protections of the Fourth Amendment and Fifth Amendment

Question 5

May a public employee be terminated from employment for refusing to waive the constitutional privilege against self-incrimination?

Answer 5

No. A public employee may not be terminated from employment for refusing to waive the constitutional privilege against self-incrimination. A person may voluntarily waive the privilege against self-incrimination. Conversely, a person may be compelled to provide self-incriminating testimony, so long as the person is granted immunity from having his testimony used against him in subsequent criminal proceedings.

Question 6

Does an inmate have a protected liberty interest in clemency proceedings?

Answer 6

No. An inmate does not have a protected liberty interest in clemency proceedings. Clemency proceedings are not protected by the Due Process Clause of the Fourteenth Amendment under Dumschat.

States are free to impose whatever process they choose in their investigations to grant clemency, such as offering the inmate an opportunity to participate in an interview but without the presence of counsel. Participation in such clemency interviews is voluntary, so it does not implicate the Fifth Amendment privilege against self-incrimination

Question 7

Does offering prisoners incentives to participate in a prison’s rehabilitative program that requires prisoners to acknowledge responsibility for their past crimes amount to compelled self-incrimination in violation of the Fifth Amendment?

Answer 7

No. Such rehabilitative programs do not compel self-incrimination if the consequences of not participating in the program are related to the program objectives and do not constitute atypical and significant hardships compared to normal imprisonment. To be protected by the Fifth Amendment, an individual must be compelled to provide self-incriminating testimony. Reducing privileges that are associated with not participating in a rehabilitative program does not compel a prisoner to discuss their past crimes if the prisoner wishes to remain silent.

Question 8

Does a defendant who pleads guilty waive the Fifth Amendment right against self-incrimination at the sentencing hearing?

Answer 8

No. A defendant who pleads guilty maintains the right against self-incrimination at sentencing.

Question 9

Is there an exception under the federal false statements statute for an exculpatory no?

Answer 9

No. The statute literally covers “any false statement,” which clearly includes an exculpatory no. There is no exception expressly in the statute and the fact that other courts have carved one out is immaterial to the Court’s analysis. Courts “may not create their own limitations legislation, no matter how alluring the policy arguments for doing so. . . .”

Question 10

Does either the Fifth Amendment or attorney-client privilege prevent the compelled production of clients’ accountants’ records possessed by their attorneys?

Answer 10

In Couch v. United States, 409 U.S. 322 (1973), the Court held that compelling an accountant to produce a taxpayer’s documents did not violate the taxpayer’s Fifth Amendment rights. There can be no Fifth Amendment violation without personal compulsion. Here, much like the taxpayer in Couch, the taxpayers in this case were not compelled to do anything. The personal-compulsion element is not met because the attorneys were the taxpayers’ agents. Accordingly, the attorneys could not invoke the Fifth Amendment to prevent production of the documents. The attorney-client privilege would apply to prevent disclosure of documents in the attorneys’ possession that would have been privileged under the Fifth Amendment if they were still in the taxpayers’ possession. However, here, even if the documents had remained in the taxpayers’ possession, they would not have been protected by the Fifth Amendment because their contents did not reflect compelled communications. Rather, the documents simply contained information that the taxpayers had voluntarily provided to their accountants, without any compulsion by the government. M

Question 11

Does the Fifth Amendment privilege against self-incrimination protect a person suspected of driving while intoxicated from being required to answer a question that involves making a simple mathematical calculation?

Answer 11

Yes. The Fifth Amendment privilege against self-incrimination protects a person suspected of driving while intoxicated from being required to answer a question that involves making a simple mathematical calculation. Although the Fifth Amendment’s Self-Incrimination Clause does not protect a suspect from being compelled to provide real or physical evidence, it does protect him from being compelled to testify against himself. In determining whether the Self-Incrimination Clause applies, the Court must therefore distinguish between testimonial and nontestimonial evidence

Question 12

Does the Fifth Amendment protect a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity

Answer 12

(1) Yes. The constitutional privilege against self-incrimination protects the target of a grand-jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. That protection extends to the testimonial aspect of a response to a subpoena seeking discovery of those sources.

Question 13

May a corporate officer invoke the Fifth Amendment privilege against self-incrimination to refuse compliance with a subpoena demanding the production of corporate records?

Answer 13

No. The Fifth Amendment of the United States Constitution establishes a privilege against testimonial self-incrimination, but this privilege does not apply to artificial entities. When the sole proprietor of a business is subpoenaed to produce business records, he is entitled to an opportunity to demonstrate that his act of production would entail testimonial self-incrimination.

Question 14

May a person who has custody of a child pursuant to a court order resist a later court order to produce the child by invoking the Fifth Amendment’s protection against self-incrimination?

Answer 14

The Fifth Amendment’s protection against self-incrimination does not extend to regulatory production orders required by a system that serves a public purpose unrelated to criminal law enforcement. Further, a person who assumes custodial duties over an object of the state’s noncriminal regulatory power diminishes her ability to assert Fifth Amendment protection.

Question 15

Does the Fifth Amendment privilege against self-incrimination apply to registration and reporting requirements related to illegal activities?

Answer 15

Yes. The Fifth Amendment privilege against self-incrimination applies to registration and reporting requirements related to illegal activities. Generally, the privilege applies if an individual is met with a substantial and real threat of incrimination. This privilege applies to prospective acts as well as past acts, as long as such a threat is present.

Question 16

Where a grand jury witness refuses to answer the prosecutor’s questions for fear of self-incrimination, must he prove to the court that self-incrimination is likely by explaining why he cannot answer the questions?

Answer 16

No. A witness who refuses to answer the prosecution’s questions at a grand jury proceeding for fear of incriminating himself need not explain why he cannot answer the questions. Such an explanation would likely incriminate him just as much as a direct answer to the question would. Instead, a court must look at all of the circumstances of the case, and the implication of the questions, to determine whether the witness is mistaken and that the answers to the questions could not possibly be incriminating.

Question 17

Does a witness who denies all culpability still retain a valid Fifth Amendment privilege against self-incrimination?

Answer 17

Yes. A witness who denies all culpability still retains a valid Fifth Amendment privilege against self-incrimination. Under the privilege, a person cannot be required to testify as a witness against himself or herself in a criminal case so long as the person fears danger from the testimony. One of the primary purposes of the privilege is to protect innocent people from being inadvertently caught up in a criminal case.

Question 18

May the government compel testimony from a witness who has invoked the Fifth Amendment right to silence by giving that witness immunity from use of both the compelled testimony and any evidence derived from that testimony in a subsequent criminal proceeding?

Answer 18

Yes. a witness may not assert the Fifth Amendment privilege against self-incrimination and refuse to testify if the witness has been granted use-and-derivative-use immunity. (compulsion)

Question 19

May a court compel testimony that is not immunized under 18 U.S.C. § 6002 if an individual asserts his Fifth Amendment privilege against self-incrimination?

Answer 19

No. A court may not compel testimony that is not immunized under 18 U.S.C. § 6002 if an individual asserts his Fifth Amendment privilege against self-incrimination. If a deponent in a civil deposition asserts his privilege against self-incrimination, he may not be compelled to testify unless granted immunity under § 6002. A court may not grant immunity. Immunity may be granted only through an officer of the executive branch, such as an officer of the Office of the Attorney General or the Department of Justice. Section 6002 prohibits the use of information derived from immunized testimony in subsequent criminal proceedings. A deponent may not be ordered or compelled to testify regarding matters borne of previously immunized testimony in a new proceeding without such testimony being covered by a separate and independent grant of immunity to ensure that the protection of § 6002 applies.

Question 20

Is a witness’s silence in response to a law enforcement official’s question sufficient to invoke the witness’s right against self-incrimination when the official believes the answer may incriminate the witness?

Answer 20

No. The Fifth Amendment privilege against self-incrimination is generally not invoked by silence. Indeed, the “right to remain silent” is a bit of a misnomer, as some sort of invocation of the right against compelled testimony is required. Additionally, even when a law enforcement official suspects that a question will lead to an incriminating answer, an express invocation of the right is required.