Criminal Procedure: 5th Amendment Privilege Against Selt Incrimination

5th Amendment Privilege Against Self-Incrimination

• Anyone can assert it in any kind of case
• Anyone asked in any case, under oath, a question, is entitled to assert the 5^th 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
• Waiver
• A criminal D, by taking the witness stand, waives his 5^th Amendment privilege as to all legitimate subjects of cross examination.