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Flashcards in Privilege against Self-Incrimination Deck (22)
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1
Q

What are the two most important things to remember for the MBE ?

A
  1. only TESTIMONIAL evidence is protected

2. only COMPELLED testimonial evidence is protected

2
Q

What issues arise with regards to the privilege against self-incrimination (4) ?

A
  1. who may assert, when, and how
  2. scope of protection
  3. prohibitions on burdens on assertion of privilege
  4. elimination/waiver of privilege
3
Q

Who may assert the privilege?

Can corporations assert the privilege?

A

YES –> natural persons

NO –> corporations/partnerships

NOTE –> privilege is PERSONAL, so it may be asserted only by a Def, witness, or party ONLY IF the answer to the Q might tend to incriminate him.

4
Q

When may privilege against self-incrimination be asserted?

A

General Rule –> a person may refuse to answer a Q whenever his response might furnish a link in chain of evidence needed to prosecute him

NOTE –> Privilege MUST be claimed in civil proceedings to prevent WAIVER for later criminal proceeding
THUS –> if person responds to Q’s instead of raising privilege in civil proceeding, he cannot later bar evidence from a criminal prosecution on compelled self-incrimination grounds

5
Q

How is the privilege against self-incrimination asserted?

A

Criminal Defendant –> has right not to take witness stand at trial, and right NOT to be asked to do so

Any other situation –> privilege does NOT permit person to avoid being sworn in or asked questions.
- person must listen to questions and SPECIFICALLY invoke privilege rather than answering

6
Q

In general, what is the scope of protection of the privilege against self-incrimination?

A
  1. covers testimonial but not physical evidence
  2. must be compelled to be covered
  3. does not apply to compulsory production OR seizure of docs
7
Q

With regards to privilege against self-incrimination, describe rule re: testimonial versus physical evidence.

A

Privilege ONLY covers compelled testimonial evidence, NOT physical evidence.

“testimonial evidence” = relates to a factual assertion, or discloses information

THUS:
- D has NO self-incrimination basis to challenge a lineup or other ID procedure, even if he is asked to say certain words.
REASONING –> not testimonial. Words are sued for ID only

8
Q

With regards to privilege against self-incrimination, describe rule re: compelled testimony

A

Only COMPELLED testimonial evidence is privileged.

THUS –> if D produced a writing of his own feee will (for example, took notes of an incriminating meeting), the police may seize his writing, or D may be compelled to produce it by subpoena
REASONING –> bc he was not compelled to make the statement originally

9
Q

When does a violation of the self-incrimination clause occur?

A

A violation of the self-incrimination clause does not occur UNTIL a person’s COMPELLED STATEMENT is USED AGAINST him in a criminal case.

10
Q

What issues arise with regards to prohibition on burdens on assertions of privilege?

A
  1. Comments on D’s Silence (and exceptions)
  2. Effect of Improper Comment (harmless error test)
  3. Penalties for failure to testify
11
Q

What are the rules w regards to comments on D’s silence?

A

Prosecutor MAY NOT comment on–>

  1. D’s silence AFTER being arrested and receiving Miranda warnings
  2. comment on D’s failure to testify at trial

Prosecutor MAY comment on –>

  1. D’s silence BEFORE Miranda warnings
  2. D’s failure to take stand IF comment is made in response to defense counsel’s assertion that D wasn’t allowed to tell his side of the story
12
Q

What test applies to improper comments by prosecutor’s on D’s silence?

A

Harmless error test

13
Q

What is criminal D’s right with regards to jury instructions and privilege against self-incrimination?

A

criminal D, upon timely motion, is ENTITLED to have judge instruct jury that they may NOT draw a negative inference from D’s failure to testify

NOTE –> judge may also offer this instruction SUA SPONTE, even over D’s objection

14
Q

What is the rule with regards to penalties for failure to testify?

A

State may NOT chill exercise of 5th amendment privilege against compelled self-incrimination by imposing penalties for failure to testify.

15
Q

What issues arise with regards to elimination of privilege?

A
  1. Grant of immunity
  2. No possibility of incrimination
  3. Waiver of privilege
16
Q

What is the general rule with regards to elimination of privilege and grant of immunity?

What level of immunity is sufficient?

A

General Rule –> witness MAY be compelled to answer questions if granted adequate immunity from prosecution

“Use and Derivative Use” immunity is SUFFICIENT.
- guarantees witness’s testimony AND evidence found bc of witness’s testimony will not be used against the witness
HOWEVER –> witness may still be prosecuted if prosecutor shows that evidence was derived from an INDEPENDENT SOURCE

17
Q

May immunized testimony be used for impeachment?

A

NO.

REASONING –> testimony obtained by promise of immunity is COERCED and therefore INVOLUNTARY. Thus it cannot be used for impeachment.

18
Q

May immunized testimony be used in a trial for perjury?

A

YES.

Any immunized statements, whether true or untrue, can be used in a trial for perjury

19
Q

May immunized testimony (or evidence from it) be used by another sovereign?

A

NO.

State can’t use if Fed gave immunity and vice versa

20
Q

What is the rule with regards to the privilege against self-incrimination if there is no possibility of incrimination?

A

There is no longer a privilege.

Example –> if SOL has run.

21
Q

Does immunity protect against perjury committed during the immunized testimony?

A

NO.

22
Q

What are the rules with regards to waiver of privilege against self-incrimination?

A

Criminal Def –> By taking witness stand, waives privilege to the extent necessary to subject him to cross-examination

Any other witness –> waives privilege ONLY if he discloses incriminating information