Privilege against Self-Incrimination

Question 1

What are the two most important things to remember for the MBE ?

Answer 1

1. only TESTIMONIAL evidence is protected

2. only COMPELLED testimonial evidence is protected

Question 2

What issues arise with regards to the privilege against self-incrimination (4) ?

Answer 2

1. who may assert, when, and how
2. scope of protection
3. prohibitions on burdens on assertion of privilege
4. elimination/waiver of privilege

Question 3

Who may assert the privilege?

Can corporations assert the privilege?

Answer 3

YES –> natural persons

NO –> corporations/partnerships

NOTE –> privilege is PERSONAL, so it may be asserted only by a Def, witness, or party ONLY IF the answer to the Q might tend to incriminate him.

Question 4

When may privilege against self-incrimination be asserted?

Answer 4

General Rule –> a person may refuse to answer a Q whenever his response might furnish a link in chain of evidence needed to prosecute him

NOTE –> Privilege MUST be claimed in civil proceedings to prevent WAIVER for later criminal proceeding
THUS –> if person responds to Q’s instead of raising privilege in civil proceeding, he cannot later bar evidence from a criminal prosecution on compelled self-incrimination grounds

Question 5

How is the privilege against self-incrimination asserted?

Answer 5

Criminal Defendant –> has right not to take witness stand at trial, and right NOT to be asked to do so

Any other situation –> privilege does NOT permit person to avoid being sworn in or asked questions.
- person must listen to questions and SPECIFICALLY invoke privilege rather than answering

Question 6

In general, what is the scope of protection of the privilege against self-incrimination?

Answer 6

1. covers testimonial but not physical evidence
2. must be compelled to be covered
3. does not apply to compulsory production OR seizure of docs

Question 7

With regards to privilege against self-incrimination, describe rule re: testimonial versus physical evidence.

Answer 7

Privilege ONLY covers compelled testimonial evidence, NOT physical evidence.

“testimonial evidence” = relates to a factual assertion, or discloses information

THUS:
- D has NO self-incrimination basis to challenge a lineup or other ID procedure, even if he is asked to say certain words.
REASONING –> not testimonial. Words are sued for ID only

Question 8

With regards to privilege against self-incrimination, describe rule re: compelled testimony

Answer 8

Only COMPELLED testimonial evidence is privileged.

THUS –> if D produced a writing of his own feee will (for example, took notes of an incriminating meeting), the police may seize his writing, or D may be compelled to produce it by subpoena
REASONING –> bc he was not compelled to make the statement originally

Question 9

When does a violation of the self-incrimination clause occur?

Answer 9

A violation of the self-incrimination clause does not occur UNTIL a person’s COMPELLED STATEMENT is USED AGAINST him in a criminal case.

Question 10

What issues arise with regards to prohibition on burdens on assertions of privilege?

Answer 10

1. Comments on D’s Silence (and exceptions)
2. Effect of Improper Comment (harmless error test)
3. Penalties for failure to testify

Question 11

What are the rules w regards to comments on D’s silence?

Answer 11

Prosecutor MAY NOT comment on–>

1. D’s silence AFTER being arrested and receiving Miranda warnings
2. comment on D’s failure to testify at trial

Prosecutor MAY comment on –>

1. D’s silence BEFORE Miranda warnings
2. D’s failure to take stand IF comment is made in response to defense counsel’s assertion that D wasn’t allowed to tell his side of the story

Question 12

What test applies to improper comments by prosecutor’s on D’s silence?

Answer 12

Harmless error test

Question 13

What is criminal D’s right with regards to jury instructions and privilege against self-incrimination?

Answer 13

criminal D, upon timely motion, is ENTITLED to have judge instruct jury that they may NOT draw a negative inference from D’s failure to testify

NOTE –> judge may also offer this instruction SUA SPONTE, even over D’s objection

Question 14

What is the rule with regards to penalties for failure to testify?

Answer 14

State may NOT chill exercise of 5th amendment privilege against compelled self-incrimination by imposing penalties for failure to testify.

Question 15

What issues arise with regards to elimination of privilege?

Answer 15

1. Grant of immunity
2. No possibility of incrimination
3. Waiver of privilege

Question 16

What is the general rule with regards to elimination of privilege and grant of immunity?

What level of immunity is sufficient?

Answer 16

General Rule –> witness MAY be compelled to answer questions if granted adequate immunity from prosecution

“Use and Derivative Use” immunity is SUFFICIENT.
- guarantees witness’s testimony AND evidence found bc of witness’s testimony will not be used against the witness
HOWEVER –> witness may still be prosecuted if prosecutor shows that evidence was derived from an INDEPENDENT SOURCE

Question 17

May immunized testimony be used for impeachment?

Answer 17

NO.

REASONING –> testimony obtained by promise of immunity is COERCED and therefore INVOLUNTARY. Thus it cannot be used for impeachment.

Question 18

May immunized testimony be used in a trial for perjury?

Answer 18

YES.

Any immunized statements, whether true or untrue, can be used in a trial for perjury

Question 19

May immunized testimony (or evidence from it) be used by another sovereign?

Answer 19

NO.

State can’t use if Fed gave immunity and vice versa

Question 20

What is the rule with regards to the privilege against self-incrimination if there is no possibility of incrimination?

Answer 20

There is no longer a privilege.

Example –> if SOL has run.

Question 21

Does immunity protect against perjury committed during the immunized testimony?

Answer 21

NO.

Question 22

What are the rules with regards to waiver of privilege against self-incrimination?

Answer 22

Criminal Def –> By taking witness stand, waives privilege to the extent necessary to subject him to cross-examination

Any other witness –> waives privilege ONLY if he discloses incriminating information