Privilege Against Self-Incrimination Checklist

Asserting the Privilege

O WHOnatural persons only
O WHENany proceeding where asked under oath a question which might incriminate
O SELF-INCRIMINATING
Special Case: Reporting Requirements
neutral on its face
report must be filed (privilege only as to specific items)
O suspect class exception:
failure to assert the privilege acts as waiver
O

TESTIMONIAL

COMPULSION

ASSERTION

must be asserted at the time of questioning

by : right not to take the stand
by witness: invoked in response to question

USE OF COMPELLED STATEMENT

Burdening the Privilege

O Type
Penalty for failure to testify
Prosecutorial comment
Harmless Error
O Remedy
Jury instruction

Eliminating the Privilege

O Immunity
Transactional vs. Use and Derivative Use
Effect of Immunitycompelled testimony:
cannot be used for impeachment
can only in perjury cases
O Waiver
O Statute of Limitations

Privilege Against Self-Incrimination Checklist

Asserting the Privilege

O

WHO

WHEN

natural persons only

Note: persons who enter a guilty plea do not waive their privilege against selfincrimination at sentencing [Mitchell v. US].
not corporations, associations or partnerships
any proceeding (civil, criminal, administrative, legislative, etc.)
asked under oath a question which might incriminate
grand jury: witness must make voluntary and intelligent waiver of privilege.

SELF-INCRIMINATING

Rule: privilege may be asserted, even if witness claims innocence, as long as witness has
cause to fear danger of prosecution from testifying [Ohio v. Reiner]
does not extend to fear of foreign prosecution [US v. Balsys]

Special case: Reporting Requirements

Sullivan-Garner Rule: government may compel information over 5th amendment
objections.
O reporting requirement must be neutral on its face
O must file the reportbut may invoke the privilege with respect to specific
items on the report [Garner v. US]
O failure to assert the privilege acts as a waiver.

Suspect Class Exception

O Failure to report is valid invocation of 5A right, if reporting is:
aimed at inherently suspect group; and
in an area permeated with other criminal statutes.

Regulatory Purpose Doctrine

O Rule: if the main reason for the government compulsion for information
is a regulatory purpose, rather than a criminal purpose, the information
may be compelled over a 5th Amendment objection.
custody hearing [Baltimore Social Services v. Bouknight]

TESTIMONIAL

Rule: the 5A privilege only applies to compelled testimonial or communicative

evidence; not real or physical evidence [Schmerber v. California]
Not protected:
compelled authorization for release of bank records [Doe v. US]

COMPULSION

ASSERTION

USE OF COMPELLED STATEMENT

must be asserted at the time of questioning

by : right not to take the stand
by witness: must take the stand and must invoke the privilege against selfincrimination in response to a specific question.

Rule: if the government does not use a persons statement in a criminal proceeding, the
5th Amendment is not violated even when the statement is compelled [Chavez v.
Martinez]

Burdening the Privilege

O Type
Penalty for failure to testify
Rule: may not be penalized for choosing not to testify.
O No penalty may be assessed by an agency against an employee for
refusing to testify or cooperate with an investigation [Garrity v. New Jersey]
Prosecutorial comment
Rule: prosecutor may not comment on s failure to testify at trial[Griffin v.
California]
O generally

prosecutor may say in summation: the who testified last got to sit here and
think, What am I going to say to fit my testimony in with the prior evidence?
without violating s 5th Amendment [Portuondo v. Agard]

in response to :
prosecution may make comments in response to the defense
attorneys assertion that the defendant was not given an
opportunity to tell his side of the story [US v. Robinson]

Harmless Error
O The harmless error test is applied where prosecutor comments on s
failure to testify.

Remedy
Jury Instruction
Rule: may request that the judge instruct the jury not to draw adverse
inferences from the s failure to take the stand [Carter v. Kentucky]
O Note: judge may provide instruction over s objections [Lakeside v.
Oregon]

Eliminating the Privilege

O IMMUNITY

Type of Immunity
TRANSACTIONAL
O Rule: transactional immunity precludes prosecution of testifying witness
for any transaction that the witness testifies about.

USE
O

DERIVATIVE USE [Kastigar v. US]

Rule: use and derivative use immunity precludes prosecution based on
testimonybut prosecution may be based on independent evidence.
use of documents produced in response to subpoena after
immunity granted to prosecute the is unconstitutional [US v.
Hubbell]

AND

Effect of Immunity
Rule: once immunity is granted, the testimony may not be used against the
witness in any manner, including impeachment [New Jersey v. Portash]
O Exception: may be used against in a prosecution for perjury [US v.
Apfelbaum]
Note: in order for immunity to compel your testimony, person must be
immunized under federal and state law [Murphy v. Waterfront Commission].

WAIVER
Rule: by taking the witness stand, a criminal waives the 5A privilege as to all
legitimate subjects of cross-examination about the pending case [Brown v. US].

STATUTE OF LIMITATIONS
Rule: when the statute of limitations has run on a charge, there is no potential for
prosecution and therefore there is no privilege [US v. Balsys].