Ch 2: Fifth Amendment Rights and Privileges Flashcards
(60 cards)
What does the Fifth Amendment provide concerning self-incrimination?
No person shall be compelled in any criminal case to be a witness against himself.
Applicable to the states through the Fourteenth Amendment.
Who can assert the privilege against compulsory self-incrimination?
An individual; artificial entities like corporations cannot assert the privilege, but a sole proprietorship can.
The privilege does not extend to custodians of corporate records.
What type of evidence is protected by the privilege against self-incrimination?
Only testimonial evidence.
Nontestimonial physical evidence is not protected.
Can an individual refuse to comply with a requirement to produce business papers?
Generally no, unless it is directed at a select group suspected of criminal activities.
Examples include occupational taxes on bookies or marijuana transfers.
What happens if a subpoena requires the production of incriminating documents?
A person may invoke the privilege if turning over the documents constitutes self-incriminating testimony.
Relevant case: United States v. Hubbell.
Can law enforcement seize documents under a valid warrant?
Yes, the Fifth Amendment does not prevent this.
Relevant case: Andresen v. Maryland.
Are diaries considered testimonial in nature under the Fifth Amendment?
Yes, typically the government cannot compel production of a diary.
Contents may be admissible if not compelled, e.g., found during lawful arrest.
What is the nature of proceedings where the privilege extends?
To any proceeding, civil or criminal, formal or informal, if answers may incriminate the witness.
Cannot invoke privilege for administrative civil records.
How does a defendant invoke the privilege against self-incrimination?
By not taking the stand.
The state cannot compel the defendant to testify.
What is the difference between a defendant’s and a witness’s privilege?
A defendant invokes by not testifying; a witness can only invoke in response to specific questions.
Invocation after testimony may violate confrontation rights.
Can attorneys counsel clients to invoke the Fifth Amendment privilege?
Yes, attorneys can counsel their clients to invoke the privilege without being held in contempt.
This ensures the protection of the client’s Fifth Amendment rights.
Can the state penalize a defendant for invoking the right against self-incrimination?
No, the state cannot penalize for not testifying or cooperating.
Prosecution cannot comment on the defendant’s refusal to speak.
What happens when a defendant waives the privilege?
By taking the witness stand; a witness waives it by disclosing self-incriminating information.
Once waived, they cannot assert privilege during cross-examination.
What is transactional immunity?
It fully protects a witness from future prosecution for crimes related to their testimony.
Often referred to as ‘blanket’ or ‘total’ immunity.
What is use and derivative-use immunity?
Precludes the prosecution from using the witness’s own testimony or any evidence derived from it against the witness.
Supreme Court ruling: Kastigar v. United States.
What is the requirement for testimony under a grant of immunity?
The testimony cannot be used against the individual in subsequent prosecution.
This applies even across different jurisdictions.
What is the significance of Miranda v. Arizona?
Established the right not to be compelled to make incriminating statements during police interrogation.
Miranda warnings must be provided to secure this privilege.
What constitutes custodial interrogation?
Questioning initiated by law enforcement after a person is in custody.
Defined as a formal arrest or significant restraint on freedom.
What is considered ‘custody’ for Miranda purposes?
A formal arrest or restraint on freedom equivalent to arrest.
Totality of circumstances determines if an individual is in custody.
Are traffic stops considered custodial interrogations?
Generally, no; they are brief and temporary.
However, circumstances may vary.
What must be done if interrogation resumes after a long duration?
Miranda warnings must be given again.
Timing is crucial for the validity of waiving rights.
How must Miranda warnings be communicated?
They need not be verbatim but must inform suspects of their rights.
Key rights include the right to remain silent and the right to counsel.
What happens if a suspect invokes their right to counsel?
All interrogation must stop until counsel is present.
Ambiguous statements do not automatically invoke this right.
Are volunteered statements protected by Miranda?
No, volunteered statements are not protected.
They are not considered the product of interrogation.
