Privilege Against Compelled Self-Incrimination

Question 1

What is the 5A privilege against compelled self-incrimination? When/to whom/what statements does it apply?

Answer 1

5A privilege against self incrimination can be asserted in ANY case by ANY person. (except corporations, except when there is no chance of incrimination - e.g. SoL).

It allows:

• witness to refuse to answer if answer may incriminate them
• criminal D to refuse to take the stand

But does allow: cops to ask name at Terry stop

It protects:

• testimonial NOT physical evidence (i.e. re factual assertion/disclosure of info, can compel blood/hair/handwriting/documents, photo lineups, etc)
• compelled testimonial evidence - so voluntary productions/speaking is not protected

Question 2

What happens if person says something incriminating in civil proceeding and later uses 5A to exclude that statement?

Answer 2

Can not do that - answering question waives 5A right against self-incrimination.

Question 3

When does the 5A right against self-incrimination violation occur?

Answer 3

Not until statements are actually used agains them in criminal trial.

Question 4

A prosecutor may not comment on D’s _____., UNLESS _____. if they do then _____.

Answer 4

• D’s silence after receiving Miranda warnings OR failure to testify at trial
• Unless comment is in response to D comment that they couldnt explain side of story, OR
• unless silence occurs before being read Miranda
• apply harmless error test to see if conviction should be reversed