Privilege against compelled self-incrimination

Question 1

Fifth Amendment privilege

Answer 1

Can be asserted by any natural person in any type of case
-The privilege is personal meaning it can only be asserted if the question might tend to incriminate the person being asked
-Must be asserted in civil proceeding to prevent waiver in a later criminal prosecution

Question 2

Method for invoking privilege

Answer 2

Criminal defendant has the right not to take the stand and not to be asked to do so

Otherwise, person must listen to each question and specifically invoke the privilege rather than answer the question
-Not applicable to asking name at Terry stop (no danger of incrimination)

Question 3

Scope of privilege

Answer 3

Protects testimonial (relates to factual assertion or discloses information), but not physical evidence
-A violation occurs when the person’s compelled statements are used against them in a criminal case

Not protected:
-Testimonial evidence that is not compelled (i.e. took incriminating notes at a meeting)
-Identification procedures/statements
-Samples of a person’s blood, handwriting, voice, hair, and DNA cheek-swab
-Disclosure of communications made in the past
-Act of producing documents that tend to incriminate

Question 4

Comments on assertion 5th amendment privilege

Answer 4

A prosecutor may not comment on D’s silence after being arrested and receiving Miranda warnings or on D’s failure to testify at trial
-Exception: when D’s counsel asserts that D was not allowed to explain their side of the story
-Silence BEFORE Miranda rights can be used against D in court

Question 5

Penalties for failure to testify

Answer 5

The state may not chill exercise of the Fifth Amendment privilege against compelled self-incrimination by imposing penalties for failure to testify

Question 6

Harmless error test

Answer 6

Apply harmless error test when a prosecutor impermissibly comments on D’s silence
-Be sure to point out which comment is impermissible on essay and then apply harmless error test

Question 7

Immunity

Answer 7

“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
-But can still be prosecuted for evidence derived from independent source
-Cannot be used to impeach D at trial, but can be used in perjury trial
-Feds and state cannot use each other’s immunity evidence
-Immunity only covers offenses to which the question relates and does not protect against perjury

Question 8

No possibility of incrimination

Answer 8

A person has no privilege against compelled incrimination if there is no possibility of incrimination
-i.e., S/L has run

Question 9

Waiver of privilege

Answer 9

A criminal defendant that takes the stand waives the privilege only if they disclose incriminating information