Privilege Against COmpelled Self Incrimination Flashcards
Who may assert privlege
Any person in any type of case when answer to question might tend to incriminate them
Privlege is personal, so may be asserted only if it may incriminate themself.
When it may be asserted
Whenever response might furnish a link in the chain of evidence needed to prosecute them.
If civil then criminal: Must be claimed in civil proceedings to prevent the privlege from being waived for a later criminal proseuction.
Method for invoking privlege
Criminal D has right not to take the stand at trial and not to be asked to do so.
In any other situation, privlege does not permit a person to avoid being swrorn as a witness or being asked questions. Rather person must listen to question and specifically invoke it rather than answere questions.
Mereley being reuqired to furnish ones name after a Terry Stop generally does not violate.
Scope: Testimonial but not physical evidence
5A protects only testimonial or communication evidence. Not real or physical.
To be testimonial, but realte a factual asserition or disclose information.
Blood sample, handwriting, voice, hair are not testimonial.
NOTE: Valid to take a DNA cheek swap after an ARREST for a serious crime.
Scope: Compulsory Production of Documents
No basis: person servied with a subponena requiring production of documents tending to incriminate them.
Scope: Seizure of Incriminating documents
No basis: doesn’t prohibit law enforcment from searching for and seizing docs tendings to incrimiante a person
SCOPE: When does violation occur
Not until a peron’s compelled statements are used AGAINST THEM in a criminal case
Prohibition against burdens on assertion of privlege: Comments on D’s silence
Prosecutor may not comment on D’s silence after recieving Miranda warnings or at trial
D, upon timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from the D’s failure to testify.
Apply harmless error test
Exceptions to prohibition to comment on D’s silence
EXCEPTION: Prosecutor can comment on D’s failure to take stand when in response to defenses’s assertion that D was not allowed to explain story
EXCEPTION: If suspect chooses to remain silent BEFORE police Mirandize, that silence can e used against them
Penalties for failure to testify
State may not impose penalties for failure to testify
Elimination of privlege
A witness may be compelled to answer questions if granted adequate immunity from prosecution.
Adequate Immunity
Use and derivate use immunity is sufficient (testimony and evidence located b/c of it). Can still be prosecuted if they use evidence independent of testimony.
Involuntary Testimony and Immunization
Immunized testimony is considered to be coerced and therefore involuntary.
Can’t be used for impeachment of a D’s testimony at trial. But can be used in perjury trial.
Use of immunized testminony by another soverign
Prohibited. Federal prosecutors can’t use evidence obtained as a result of state grant of immunity and vice versa.
No possibility of incrimination
A person has no privlege if no possibility of incrimination (like statute of limitationts expiring)
