- Anyone can assert it in any kind of case
- Anyone asked in any case, under oath, a question, is entitled to assert the 5th Amendment privilege.
- The privilege must be claimed in criminal proceedings to prevent it from being waived in later criminal prosecutions.
- Scope of protection:
- Does not bar the government from using our bodies in ways to incriminate.
- Protects us from compelled testimony.
- Gov’t cant compel us to take a lie detector, undergo custodial police interrogation.
- Unconstitutional for the prosecutor to make a negative comment on the D’s failure to testify, or his remaining silent on hearing Miranda warnings.
- Can be eliminated:
- 3 ways
- Grant of immunity – use and derivative use immunity
- We will not use immunized testimony or anything derived from it to convict you. We can prosecute you based on any evidence we had on you before the immunity was given.
- No possibility of incrimination
- Statute of Limitations has run on underlying crime
- A criminal D, by taking the witness stand, waives his 5th Amendment privilege as to all legitimate subjects of cross examination.
Criminal Procedure: 5th Amendment Privilege Against Selt Incrimination
5th Amendment Privilege Against Self-Incrimination
Labels: Criminal Procedure