Privilege Against Self-Incrimination Flashcards
Who can assert the privilege against compelled self-incrimination?
Only natural people.
When can the privilege against self-incrimination be used?
Generally whenever. But if an individual responds to questions instead of claiming privilege during a civil proceeding, he cannot later bar that evidence from a criminal prosecution on self-incrimination grounds.
T/F: The 5th Amend privilege protects only testimonial or communicative evidence.
True, no protection against real or physical evidence. For a suspect’s communication to be testimonial, it must relate a factual assertion or disclose information.
T/F: D does not have a self-incrimination basis to object to a line-up or other identification procedure.
True. It is not testimonial communication.
If D produced a writing of his own free will (e.g. took incriminating notes of a meeting), can the police seize this writing?
Yes. Only compelled testimonial evidence is privileged. This is testimonial evidence but it is not compelled.
T/F: Prosecutor may not comment on D’s silence after being arrested and receiving Miranda warnings.
True.
Can a prosecutor comment on D’s failure to take the stand when the comment is in response to defense counsel’s assertion that D was not allowed to explain his side of the story?
Yes. This is an exception to the general rule that a prosecutor cannot comment on D’s silence (before trial and during).
T/F: When a prosecutor impermissibly comments on D’s silence, the harmless error test applies.
True.
The defendant and an accomplice were on trial together for burglary. Both had given confessions implicating themselves and their accomplice. At trial, the defendant maintained that his confession had been obtained through improper coercion by the police. For the purpose of countering the claim of coercion, the prosecution seeks to place the accomplice’s confession into evidence. After objection by the defendant’s counsel, the judge agrees to issue a limiting instruction to the jury that the confession is to be considered only with regard to the question of whether the defendant’s confession was coerced.
May the accomplice’s confession be admitted under that condition?
The confession is admissible with the judge’s limiting instruction. Where two persons are tried together and one has given a confession implicating the other, the general rule is that the 6th Amend right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the non-confessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.
Given that the judge will issue the limiting instruction, the confession is admissible.
