Privilege Against Compelled Self-Incrimination Flashcards
(23 cards)
Which amendment does the privilege against compelled self-incrimination stem from?
5th Amendment
Who may assert the privilege?
Any natural person (i.e., not corporations or partnerships)
T or F: The privilege is personal and so may be asserted by D/W/party only if the answer might tend to incriminate them
True
When may person invoke privilege?
Whenever response might furnish link in chain of evidence needed to prosecute them
Can anyone besides a D avoid taking stand as W/answering questions via privilege?
No, person must listen to questions AND specifically invoke the privilege instead of answering
T or F: Failure to assert privilege in civil trial will not preclude person from asserting it in later criminal trial
False
Following a Terry stop, merely being required to ___________ doesn’t violate the 5th Amendment
furnish one’s name
What type of evidence is protected?
Testimonial (NOT physical)
What is needed to constitute testimonial evidence?
Must relate to a factual assertion or disclose information
T or F: Blood, handwriting, voice, and hair are examples of non-testimonial evidence
True
Is a DNA cheek swab following a serious arrest constitutional?
Yes
Can the privilege be used to avoid producing requested documents (via subpoena)?
Generally no (because no testimonial self-incrimination)
Does the 5th Amendment prohibit law enforcement from searching for and seizing documents tending to incriminate a person?
No
When does a violation actually occur?
When the person’s compelled statements are used against them in a criminal case
Can a prosecutor comment on D’s silence or failure to take stand?
No (UNLESS D’s counsel suggests D never had chance to explain self OR such comments involve pre-Miranda warnings silence)
What test applies where prosecutor improperly comments on D’s silence?
Harmless error test
Can D be compelled to testify if granted immunity?
Yes
What is meant by “use and derivative use” immunity?
Guarantees W that testimony and evidence stemming from testimony will not be used against W (unless such evidence was derived from independent source)
Can immunized testimony be used to impeach D?
No (because coerced/involuntary)
Can immunized testimony be used for perjury?
Yes
T or F: Immunity extends only to the offenses which Q relates and doesn’t protect against perjury committed during immunized testimony
True
A criminal D, by taking witness stand, waives privilege ________.
to the extent necessary to subject them to any cross-examination
A W waives privilege only if ______.
they disclose incriminating information
