privilege against compelled self-incrimination

Question 1

who may assert privilege against compelled self-incrimination?

Answer 1

can be asserted by any person in any type of case when answer to question might tend to incriminate her

Question 2

when must privilege against compelled self-incrimination be asserted

Answer 2

the first time the question is asked (even if in civil) - or you have waived for all subsequent criminal prosecutions

Question 3

scope of 5th amendment protection - what does it protect?

Answer 3

testimonial or communicative evidence

NOT real or physical evidence

Question 4

can DNA be collected?

Answer 4

OK to take DNA cheek swab:

1) after arrest

2) of serious crime

Question 5

comments on D’s silence allowed?

Answer 5

unconstitutional for prosecutor to make a comment on D’s silence after receiving Miranda warnings or at trial (if silence BEFORE, can be used against them)

CAN comment on D’s failure to take stand IF in response to defense’s assertion that D was not allowed to explain story

Question 6

if prosecutor impermissibly comments on D’s silence

Answer 6

harmless error test applies. May not be fatal to an otherwise sound conviction

Question 7

elimination of privilege - grant of immunity

Answer 7

witness may be compelled to answer Qs if granted immunity

Question 8

elimination of privilege - no possibility of incrimination

Answer 8

a person has no privilege against compelled self-incrimination if not possibility of incrimination (ex. statute of limitations has run)

Question 9

waiver of privilege

Answer 9

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