Privilege Against Self Incrimination Flashcards
Who May Assert the 5th Amendment Privilege Against Self Incrimination
The privilege may be asserted by any natural person (not corporations) in any instance if the answer to a question may tend to subject them to criminal liability
When May the 5th Amendment Privilege Against Self Incrimination be Asserted
The privilege can be asserted in any proceeding in which an individual testifies under oath (trial, administrative hearings, congressional hearings)
Failure to Plead the 5th in a Civil Proceeding
If an individual responds to questions in a civil proceeding instead of claiming the privilege, the individual cannot later exclude that evidence in a subsequent criminal proceeding on self-incrimination grounds
Method on Invoking Privilege
A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so.
All other individuals must be sworn in, listen to the questions, and specifically invoke the privilege rather than answer the questions (can’t avoid being called to the stand)
NOTE – Merely being required to finish one’s name during a Terry stop does not violate the 5th amendment because disclosure of one’s name generally poses no threat of incrimination.
Comments on Defendant’s Silence
A prosecutor may not comment negatively on:
1) the defendant’s decision not to testify; and
2) the defendant’s silence after being arrested and receiving Miranda warnings (post-Miranda silence)
EXCEPTION – A prosecutor 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 was not allowed to explain their side of the story.
Jury Instruction on Defendant’s Silence
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.
The judge may offer this instruction sua sponte, even over the defendant’s objection
Pre-Miranda Silence
If a suspect chooses to remain silent before the police read them Miranda rights, that silence can be used against the suspect in court
Scope of 5th Amendment Self Incrimination Protection
The privilege against self incrimination protects only testimonial evidence or communicative evidence and not real or physical evidence. p
To be testimonial, it must relate a factual assertion or disclose information.
Nontestimonial - blood, handwriting, voice, hair
When does a violation of the privilege against self incrimination occur
A violation of self incrimination does not occur until a person’s compelled statements are used against them in a criminal case
Grant of Immunity
A witness may be compelled to answer questions if granted adequate immunity from prosecution.
Use and Derivative immunity guarantees that the witness’s testimony and evidence located by means of the testimony will not be used against the witness.
However, the witness may still be prosecuted if the prosecutor shows that the evidence used against the defendant was derived from a source independent of the immunized testimony.
Additionally, an individual may be convicted based on evidence obtained prior to the grant of immunity.
Defendant Taking the Stand
By taking the stand, the defendant waives the ability to take the fifth as to anything properly within the scope of cross-examination
Statute of Limitations and Taking the Fifth
The privilege is unavailable if the statute of limitations has run on the underlying crime since, in this circumstance, a witness’s testimony could not expose them to criminal prosecution.
