Privilege Against Compelled Self-Incrimination

Who may assert the privilege

Only actual persons may assert the privilege, not corporations or partnerships. It can only be asserted if the answer to the question might tend to incriminate the person asserting the privilege

When Privilege May be asserted

A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them. The privilege must be claimed in civil proceedings to prevent the privilege from being waived later at a criminal prosecution

Methods for Invoking Privilege

A criminal defendant has a right not to take the witness stand at trial. In any other situation, the privilege does not prevent a person from being sworn in or asked questions. The person must invoke the privilege on a question-by-question basis

Scope of Protection: Testimonial Evidence

5A only protects testimonial or communicative evidence and not real or physical evidence. Communications are only considered testimonial if they relate a factual assertion or disclose information

Scope: Compulsory Production of Documents

A person served with a subpoena requiring production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply because the act of producing documents does not involve testimonial self-incrimination

Scope: Seizure of Incriminating Documents

5A does not prohibit the search for and seizure of documents tending to incriminate a person. The privilege protects against being compelled to communicate information, not against the disclosure of communications made in the past

Violation of Self-Incrimination Clause (SIC)

A violation only occurs when a person’s compelled statements are used against them in a criminal case

Comments on a Defendant’s Silence

A prosecutor may not comment on a defendant’s silence after being arrested and receiving Miranda warnings, nor may the prosecutor comment on a defendant’s failure to testify at trial. However, a prosecutor, on timely motion, is permitted to have the judge instruct the jury that they may not draw an adverse inference from the defendant’s failure to testify. The judge may do this sua sponte even over the defendant’s objection

Exception to Commenting on a Defendant’s Silence

A prosecutor can comment on a defendant’s failure to take the stand only when the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story

Silence before Miranda Warnings

A prosecutor may comment on a suspect’s decision to remain silent prior to Mirandizing

Harmless Error Test

If a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies

Penalties for Failure to Testify

The state may not chill exercise of the SIC by imposing penalties for failure to testify

Grant of Immunity

A witness may be compelled to answer questions if granted adequate immunity from prosecution

Use and Derivative Use Immunity Sufficient

Use and derivative use immunity guarantees that the witness’s testimony and evidence located by means of the testimony will not be used against the witness. However, the witness may still be prosecuted if the government can show that the evidence used against the witness was derived from an independent source

Immunized Testimony Involuntary

Testimony obtained by a promise of immunity is coerced and therefore involuntary. It cannot be used for impeachment of a defendant’s testimony at trial. However, immunized statements, whether true or untrue, can be used in a trial for perjury

Use by Another Sovereign

Federal prosecutors may not use evidence obtained as a result of a state grant of immunity and vice versa

No Possibility of Incrimination

A person has no SIC privilege if there is no possibility of incrimination (for instance if the SoL has run)

Scope of Immunity

Immunity extends only to the offenses to which the question relates and does not protect against perjury committed during the immunized testimony

Waiver of privilege

A criminal defendant, by taking the witness stand, waives the privilege to the extent necessary to subject them to any cross-examination. A witness waives the privilege only if they disclose incriminating information