Taking the 5th and juvenile proceedings

Question 1

5th amendment privilege against compelled self-incrimination

Answer 1

a. Who can take fith? anyone
b. must be under SWORRN testimony. can be any proceeding.
c. Failure to assert in civil proceeding may undermine the ability to later assert it in a later criminal proceeding.
i. if an individual responds to questions in a civil proceeding, he cannot exclude that evidence in a subsequent crim proceedings on self-incrimination grounds

Question 2

Scope of testimonial privilege

Answer 2

i. Bc testimonial privilege, it disallows negative prosecutorial comment on
1. ∆ decision not to testify at trial AND
2. ∆ indication of right to silence or counsel
3. that is, P cant say “if he was so innocent why did he use a lawyer or not take stand”
4. BUT, PP MAY comment negatively on noncustodial silence during police interrogation of a ∆ who HASN’T invoked Miranda rights
ii. Bc testimonial doesn’t apply to content of docs whose production was mandated by subpoena

Question 3

3 ways to eliminate 5th amendment privilege against self-incrimination

Answer 3

i. Grant of immunity. can grant use and derivative use immunity, barring govt from using your testimony or anything derived to convict you
1. CAN convict based on evidence obtained prior to grant of immunity
ii. Taking the stand: by taking the stand, ∆ cant refuse to then answer the P on cross-X . ∆ cant answer his atty and then refuse to answer P on cross
iii. SOL: privilege unavailable if SOL has run, bc you couldn’t be exposed to criminal prosecution.

Question 4

Juvenile proceedings rights given to child

Answer 4

i. written notice of charges
ii. assistance of counse
iii. opportunity too confront and cross-X witnesses
iv. right not to testify
v. right to have guilt established by proof beyond reasonable doubt

Question 5

Juvenile court proceedings– right to trial, pretrial detention and double jeapordy

Answer 5

b. NO right to trial by jury in delinquency proceedings.
c. Pretrial detention of a juvenile is allowed if there is serious risk to society, but must be for strictly limited time before trial may be held
d. double jeapordy—cant be tried as adult for same behavior