Privilege against compelled self-incrimination Flashcards
Asserting the privilege generally
Fifth amendment privilege against self-incrimination can be asserted by any person in any type of case
Only natural persons may assert it, not corporations or partnerships
Its personal so may be asserted by the defendant, witness, or party only if the answer to the question might tend to incriminate them
When the privilege can be asserted
May refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them
Must be claimed in civil proceedings to prevent the privilege from being waived for later criminal prosecution
Method for invoking privilege
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, must listen to the questions and specifically invoke the privilege rather than answer the question
Asked name and terry stop
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
Testimonial and physical evidence
Fifth amendment privilege protects only testimonial or communicative evidence and not real or physical evidence
For it to be testimonial, must relate a factual assertion or disclose information
Examples of non-testimonial evidence
Samples of a persons blood, handwriting, voice, and hair
Constitutionally valid to take a DNA cheek swab after an arrest for a serious crime
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
The act of producing the documents does not involve testimonial self-incrimination
Seizure of incriminating documents
Fifth amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person
Privilege protects against being compelled to communicate information, not against disclosure of communication made in the past
When a violation occurs
A violation of the self-incrimination clause does not occur until a person’s compelled statements are used against them in a criminal case
Comments on defendant’s silence
Prosecutor may not comment on a defendant’s silence after being arrested and receiving Miranda warnings
Neither may prosecutor comment on a defendant’s failure to testify at trial
- but 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 as not allowed to explain their side of the story
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
- can offer it sua sponte, even over defendant’s objections
Silence before Miranda warnings
If suspect chooses to remain silent before police read them Miranda rights, that silence can be used against the suspect in court
Impermissibly comments on defendants silence - test applied
When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies
Grant of immunity and elimination of privilege
A witness may be compelled to answer questions if granted adequate immunity from prosecution
But federal prosecutors may not use evidence obtained as a result of state grant of immunity and vice versa
Use and derivative use immunity
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, 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
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
