Privilege Against Compelled Self-Incrimination

Question 1

Who May Assert the Privilege (5th Amendment; Privilege against compelled self-incrimination)

Answer 1

Can be asserted by any person in any type of case when answer to question might tent to incriminate them
* A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them.
* The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution.
* Thus, if an individual responds to questions instead of claiming the privilege during a civil proceeding, they cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.

Question 2

Scope of Protection (5th Amendment; Privilege against compelled self-incrimination)

Answer 2

Protects testimonial or cummunicative evidence
* Not real or physical evidence

Examples of non-testimonial evidence that the prosecution can compel a person to produce samples of:
* Person’s Blood
* Handwriting
* Voice
* Hair
* A note on DNA collection: The Supreme Court held that it is constitutionally valid to take a DNA cheek swab after an arrest for a serious crime.

A person served with a subpoena requiring production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply, because the act of producing the documents does not involve testimonial self-incrimination.

Question 3

Seizure of Incriminating Documents (5th Amendment; Privilege against compelled self-incrimination)

Answer 3

The Fifth Amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person.
* The privilege protects against being compelled to communicate information, not against disclosure of communication made in the past.

Question 4

Comments on Defendant’s Silence (5th Amendment; Privilege against compelled self-incrimination)

Answer 4

• Prosecutor may not comment on defendant’s silence after receiving Miranda warnings or at trial
• Prosecutor can comment on defendant’s failure to take stand when in response to defense’s assertion that defendant was not allowed to explain story
• If suspect remains silent before Miranda warnings, silence can be used against them
• When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies.

Question 5

Elimination of Privilege (5th Amendment; Privilege against compelled self-incrimination)

Answer 5

Grant of Immunity:
* A witness may be compelled to answer questions if granted immunity

No Possibility of Incrimination:
* A person has no privilege against compelled self-incrimination if no possibility of incrimination

Question 6

Waiver of Privilege (5th Amendment; Privilege against compelled self-incrimination)

Answer 6

Defendant who takes the witness stand waives the 5th Amenment privilege as to all legitimate subjects of cross examination

Question 7

Steps for Analyzing Search and Seizure

Answer 7

1. Governmental Conduct
2. Standing (reasonable expectation of privacy)
3. Valid Warrant (Probable Cause & Particularity)
4. Good Faith Defense
5. Exceptions to Warrant Requirement (Search incident to arrest, automobile exception, plain view, consent, stop & frisk, hot pursuit, etc.)

Question 8

Totality of the Circumstances Test

Answer 8

Judging the reliability of informants:
* Credability
* Basis of knowledge

Terry Stops:
* Police can detain person for investigatory purposes if reasonable suspicion of criminal activity supported by articulable facts

Waiver of Miranda rights must be knowing and voluntary:

Question 9

Harmless Error Test

Answer 9

Exclusionary Rule:
* Can come in if harmless error

Prosecutor’s comments on a defendant’s silence at trial: