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 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
        • Waiver
          • A criminal D, by taking the witness stand, waives his 5th Amendment privilege as to all legitimate subjects of cross examination.