5A Basics 2 Flashcards
(41 cards)
Unlike the 4A, the 5A is not ___
self-executing, must expressly assert privilege or lost
Assertion is required for 5A because
- puts govt on notice
- facilitates creation of contemporaneous record about existence of 3 elements for a claim
In Murphy, the D lost privilege bc ____
gave answer and declined to assert 5A privilege
Brogan says to assert 5A he may __ but not __
remain silent, make a false statement
Hypo: Helping the German illegally cross the border. Approach car and ask who D is and ask why U-turn to stop on other side. D says needed to go to the bathroom. Agents say you know crime to lie. D then asked to speak to lawyer. Pros want to use fact D looked uncomfy and asked for lawyer as evidence of guilt.
Testimonial but is there compulsion?
Judge Lynch said yes but not violation of Terry stop analysis
Rogers facts
woman talked about being Communist and answered many questions. Only balked when asked to name other communists
Rogers says that once a witness chooses to answer a question, she __
can’t refuse to be examined further concerning general area of the answer
Roger says that disclosure of the fact ___
waives privilege as to the details
The BUT to Rogers is that for each subsequent question the issue is whether the answer __
might subject witness to real danger of further crimination beyond that of original answer
The only time Rogers really applies is when __
person fully incriminated but refuses to name names
In real world outside Rogers it is rare not to conclude ___
next Q will incriminate you further
Baxter v. Palmigiano says that prison authorities can __
draw adverse inferences from silence during prison disciplinary proceedings
Outside of criminal D’s a person who wishes to claim 5A privilege__
may generally be examined AND adverse inferences from refusal to testify are permissible
In Woodard, Ohio clemency proceedings for death row inmates allowed for/required ___
voluntary interview without counsel or grant of immunity
In Woodard the 5A was not implicated because __
inmates not compelled to participate in voluntary interview
In Williams the D had been barred from ___
raising alibi defense bc violating Florida law requiring notice to pros before trial
In Williams there was no 5A problem because __
no different than other pressures in crim trial process
McKune held that ____ wasn’t sufficient for compulsion
conditions here (medium to max security prison transfer)
Examples where penalties are capable of coercing incriminating testimony
- terminating employment
- loss of professional license
- ineligibility for govt contracts
- loss of right to participate in political associations and hold public office
In Antelope, the govt tried to get ___
person to disclose prior sex crimes for probation without grant of immunity
Antelope held that the probation condition ___
couldn’t be enforced (effectively extended prison + not hypothetical bc govt denied 2x before)
Collective entity doctrine means that ___
corps have no 5A rights (Hale)
The required records doctrine holds that when there is a recordkeeping requirement imposed on a class not ___ a person within that class ___
by nature suspected of crim activity, who fears incrimination can’t object to required recording
Case about required records doctrine
Shapiro
