Privilege Against Compelled Self-Incrimination Flashcards
1
Q
Who May Assert the Privilege
A
- 5th Am privilege against self-incrim can be asserted by any person in any type of case
- only natural persons may assert the privilege, not corporations or partnerships
- privilege is personal -> can be asserted by any defendant, witness or party only if the answer to the q might tend to incriminate that particular individual
2
Q
When Privilege May Be Asserted
A
- may refuse to answer q whenever response might furnish link in chain of ev needed to prosecute them
- must be claimed in civil proceedings to prevent privilege from being waived in later crim prosecution
-> if indiv responds to q’s instead of claiming privilege during civ proceedings, CAN’T later bar that ev from crim prosecution on compelled self-incrim grounds
3
Q
Method for Invoking the Privilege
A
- crim def has right not to take witness stand at trial + not to be asked to do so
- in any other situation, privilege doesn’t permit indiv to avoid being sworn as witness or being asked q’s -> indiv needs to listen to q’s + specifically invoke the privilege in response
4
Q
Testimonial vs. Physical Evidence
A
- 5th Am privilege protects only testimonial/communicative ev -> doesn’t protect real/physical ev
- for communication to be considered testimonial, must relate a factual assertion or disclose info
- vs. prosecution can compel samples of hair, voice, handwriting, + blood (+ DNA in case of serious crime)
5
Q
Compulsory Production of Documents
A
- person served w/ subpoena requiring production of docs tending to incriminate them generally has no basis in the privilege to refuse to comply
- rationale: act of producing docs doesn’t involve testimonial self-incrim
6
Q
Seizure of Incriminating Docs
A
- 5th Am doesn’t prohibit law enforcement officers from searching for + seizing docs tending to incriminate someone
- protects against being compelled to communicate info, NOT against disclosure of communication made in past
7
Q
When does violation of this privilege occur?
A
- violation of this clause doesn’t occur until person’s compelled statements are used against them in a criminal case
8
Q
MBE - Key Elements of This Privilege
A
- only TESTIMONIAL ev is protected (no violation/no right to object to something like a lineup or voice id procedure)
- only COMPELLED testimonial evidence is privileged (police can seize or compel production of some kind of writing that def produced of own free will, b/c they weren’t compelled to make the original statement)
9
Q
Prohibitions Against Burdens on Assertion of Privilege
A
- prosecutor can’t comment on def’s silence (either refusal to speak post-Miranda warnings, or failure to testify at trial)
-> exception: if def’s counsel says def wasn’t allowed to explain their side of story
-> exception: silence BEFORE Miranda warnings can be used in court - def entitled to adverse inference instruction
- state can’t impose penalties for failure to testify
10
Q
Standard for Reviewing Prosecutor Comments on Def Silence
A
- harmless error test
11
Q
Elimination of Privilege
A
- witness MAY be compelled to answer q’s if granted adequate immunity from prosecution
12
Q
“Use and Derivative” Immunity
A
- guarantees witness’s testimony + ev located by means of testimony won’t be used against witness
- BUT witness may still be prosecuted if prosecutor shows that the ev to be used against witness was derived from a source independent of immunized testimony
13
Q
Immunized Testimony - Prosecution’s Ability to Use
A
- testimony obtained by promise of immunity counts as coerced -> INVOLUNTARY
- prosecution CAN’T use for impeachment of def’s testimony at trial
- BUT could use in a trial for perjury
14
Q
Use of Testimony by Another Sovereign
A
- fed prosecutors can’t use ev obtained as result of state grant of immunity + vice versa
15
Q
Relationship Between Privilage + Possibility of Incrimination
A
- indiv has no privilege against self-incrim if there’s no possibility of incrimination
- ex: if statute of limitations has already run
