PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION Flashcards
WHO MAY ASSERT THE PRIVILEGE
- 5th am privilege against self-incrimination can
be asserted by any person in any type of case. - Only natural persons may assert the privilege, not corporations/partnerships.
- The privilege is personal and so may be asserted
by D, witness, or party only if the answer to the
question might tend to incriminate them.
WHEN PRIVILEGE MAY 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 criminal prosecution on compelled self-incrimination grounds.
METHOD FOR INVOKING PRIVILEGE
- A criminal D has a right not to take the witness
stand at trial & 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 /being asked questions.
- Rather, the person must listen to the questions & 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 5th am b/c disclosure of one’s name generally poses no danger of incrimination.
SCOPE OF PROTECTION: Testimonial but Not Physical Evidence
- The Fifth Amendment privilege protects only testimonial/communicative evidence & not real/ physical evidence.
- For a suspect’s communication to be considered testimonial, it must relate a factual assertion/ disclose information.
- Examples of non-testimonial evidence that 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.
Compulsory Production of Documents
- A person served w/ a subpoena requiring production of docs tending to incriminate them generally has no basis in the privilege to refuse to comply, b/c the act of producing the docs does not involve testimonial self-incrimination.
Seizure of Incriminating Documents
- 5th am does not prohibit officers from searching for & 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 Violation 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
Tip
For purposes of the Multistate Bar Exam, 2 of
the most important things to remember about 5th am self-incrimination privilege are:
* Only testimonial evidence is protected. Thus, D
has no self-incrimination basis to object to a lineup/ other identification procedure—even if they are asked to say certain words (ex. “Your money or your life!”). This procedure does not involve testimonial evidence; the words are used for identification purposes and not as testimony.
* Likewise, only compelled testimonial evidence is privileged. Thus, if D produced a writing of their
own free will (ex. took incriminating notes of a
meeting), police may seize this writing, or D
may be compelled to produce it by subpoena, b/c they were not compelled to make the statement
originally.
PROHIBITION AGAINST BURDENS ON ASSERTION OF PRIVILEGE: Comments on Defendant’s Silence
- A prosecutor may not comment on D’s silence after being arrested & receiving Miranda warnings.
- Neither may the prosecutor comment on D’s failure to testify at trial.
- However, D, upon timely motion, is entitled to have judge instruct jury that they may not draw an adverse inference from D’s failure to testify
- Moreover, judge may offer this instruction sua sponte, even over D’s objection.
Comments on Defendant’s Silence: Exception
- A prosecutor can comment on D’s failure to take the stand when the comment is in response to defense counsel’s assertion that D was not allowed to explain their side of the story.
Comments on Defendant’s Silence: 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.
Comments on Defendant’s Silence: Harmless Error Test Applies
- When a prosecutor impermissibly comments on D’s silence, harmless error test applies.
Penalties for Failure to Testify
The state may not chill exercise of 5th am privilege against compelled self-incrimination by imposing penalties for failure to testify.
ELIMINATION OF PRIVILEGE: Grant of Immunity
- A witness may be compelled to answer questions if granted adequate immunity from prosecution.
Grant of Immunity: “Use and Derivative Use” Immunity Sufficient
- “Use and derivative use” immunity guarantees that witness’s testimony & evidence located by means of the testimony will not be used against the witness.
- However, the witness may still be prosecuted if prosecutor shows that evidence to be used against witness was derived from a source independent of the immunized testimony.
