Privilege Against Compelled Self-Incrimination Flashcards
Who may assert the privilege against self-incrimination?
The Fifth Amendment privilege against self-incrimination can be asserted by any person in any type of case. Only natural persons may assert the privilege, not corporations or partnerships. The privilege is personal and so may be asserted by a defendant, witness, or party only if the answer to the question might tend to incriminate them.
When may the privilege of self incrimination be asserted?
A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. Thus, if an individual responds to questions instead of claiming the privilege during a civil proceeding, they cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.
What is the method for invoking self incrimination?
A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so. In any other situation, the privilege does not permit a person to avoid being sworn as a witness or being asked questions. Rather, the person must listen to the questions and specifically invoke the privilege rather than answer the questions.
Note: Merely being required to furnish one’s name after a Terry stop generally does not violate the Fifth Amendment because disclosure of one’s name generally poses no danger of incrimination.
Is the scope for testimonial purposes or physical evidence purposes?
The Fifth Amendment privilege protects only testimonial or communicative evidence and not real or physical evidence. For a suspect’s communication to be considered testimonial, it must relate a factual assertion or disclose information.
Examples of non-testimonial evidence that the prosecution can compel a person to produce include samples of a person’s blood, handwriting, voice, and hair.
A note on DNA collection: The Supreme Court held that it is constitutionally valid to take a DNA cheek swab after an arrest for a serious crime.
What is the compulsory production of documents?
A person served with a subpoena requiring production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply, because the act of producing the documents does not involve testimonial self-incrimination.
What is the seizure of incriminating documents?
The Fifth Amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person. The privilege protects against being compelled to communicate information, not against disclosure of communication made in the past.
When does the violation of the privilege to self incrimination occur?
A violation of the Self-Incrimination Clause does not occur until a person’s compelled statements are used against them in a criminal case.
What comments can be made on the Ds silence?
A prosecutor may not comment on a defendant’s silence after being arrested and receiving Miranda warnings. Neither may the prosecutor comment on a defendant’s failure to testify at trial. However, a defendant, upon timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from the defendant’s failure to testify. Moreover, the judge may offer this instruction sua sponte, even over the defendant’s objection.
a. Exception
A prosecutor can comment on a defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story.
b. Silence Before Miranda Warnings
Note that if a suspect chooses to remain silent before police read them their Miranda rights, that silence can be used against the suspect in court.
c. Harmless Error Test Applies
When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies.
What are the penalties for the failure to testify?
The state may not chill exercise of the Fifth Amendment privilege against compelled self-incrimination by imposing penalties for failure to testify.
What is the grant of immunity for the self incrimination privilege?
A witness may be compelled to answer questions if granted adequate immunity from prosecution.
a. “Use and Derivative Use” Immunity Sufficient
“Use and derivative use” immunity guarantees that the witness’s testimony and evidence located by means of the testimony will not be used against the witness. However, the witness may still be prosecuted if the prosecutor shows that the evidence to be used against the witness was derived from a source independent of the immunized testimony.
b. Immunized Testimony Involuntary
Testimony obtained by a promise of immunity is coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of a defendant’s testimony at trial. However, any immunized statements, whether true or untrue, can be used in a trial for perjury.
c. Use of Testimony by Another Sovereign Prohibited
Federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa.
What is there is no possibility of incrimination?
A person has no privilege against compelled self-incrimination if there is no possibility of incrimination (for example, statute of limitations has run).
What is the scope of immunity?
Immunity extends only to the offenses to which the question relates and does not protect against perjury committed during the immunized testimony
What is the waiver of the self incrimination privilege?
A criminal defendant, by taking the witness stand, waives the privilege to the extent necessary to subject them to any cross-examination. A witness waives the privilege only if they disclose incriminating information.
