Privilege Against Compelled Self-Incrimination

Question 1

Who may assert the privilege against self-incrimination?

Answer 1

persons not corps

Question 2

When may the privilege against self-incrimination be asserted?

Answer 2

may be asserted only if question might tend to incriminate (might furnish a link in the chain of evidence needs to prosecute)
Must be claimed in civil proceedings for it not to be waived in future prosecution
no privilege where they have been granted adequate immunity or there is no possibility of incrimination

Question 3

What specific rights does the privilege accord a criminal defendant?

Answer 3

right not take witness stand or be asked to do so
in all other situations, the privilege does not allow the person to avoid being sworn or being asked questions (privilege must be invoked specifically)

Question 4

What is the scope of the self-incrimination privilege’s protection?

Answer 4

Only to testimonial/communicative evidence (not real/physical)
[does not apply to subpoena duces tecum or prevent seizure of incriminating docs]
Only to compelled testimony

Question 5

When does a self-incrimination violation occur?

Answer 5

when the compelled statement is used against someone in a criminal case

Question 6

What are the prohibitions on burdens on defendant’s silence?

Answer 6

Prosecution may not comment on a defendant’s silence after arrest/Miranda or on failure to testify
Defendant may obtain a jury instruction against adverse inference for failure to testify (may be offered sua sponte as well)

Question 7

When may a defendant’s silence be used against them?

Answer 7

Silence pre-miranda
Prosecution may also comment on failure to testify in response to defense counsel’s assertion that defendant was not allowed to explain their side of the story

Question 8

What test applies when prosecutor impermissibly comments on defendant’s silence?

Answer 8

harmless error

Question 9

What effect does adequate immunity from prosecution have on compelled testimony?

Answer 9

Witness may be compelled

Question 10

What is testimony obtained by promise of immunity?

Answer 10

coerced and involuntary and thus may not be used to impeach a defendant’s testimony at trial but may be used in perjury trial

Question 11

What is use and derivative use immunity?

Answer 11

Guarantees that witness testimony and evidence derived from the testimony will not be used against the witness but witness may still be prosecuted if the prosecutor shows the evidence derived from an independent source
This is sufficient immunity for compulsion to testify