5th - The Privilege Against Compulsory Self-Incrimination

Compulsory Disclosure

3. Compulsory Disclosure The privilege generally does not apply to an individual's voluntarily prepared business papers or to records required by law to be kept, such as tax returns. Fisher v. United States, 425 U.S. 391 (1976). However, a person can refuse to comply with a requirement to register or pay a tax where the requirement is directed at a select group "inherently suspect of criminal activities." Marchetti v. United States, 390 U.S. 39, 52 (1968) (occupational tax on bookies); Leary v. United States, 395 U.S. 6 (1969) (registration and tax based on transfer of marijuana). a. Subpoena A person who is served with a subpoena requiring the production of possibly incriminating documents may invoke the privilege if the act of turning over the documents constitutes self-incriminating testimony. United States v. Hubbell, 530 U.S. 27 (2000). b. Warrant for seizure of documents The Fifth Amendment does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person. Andresen v. Maryland, 427 U.S. 463 (1976). 1) Diaries Generally, the government may not compel production of a diary. The contents of a diary are similar to oral testimony, and as such are considered testimonial in nature. Because one cannot be compelled to testify against himself, the government may not compel production of documents that are similarly testimonial in nature. See, e.g., Schmerber v. California, 384 U.S. 757 (1966). Note, however, that if the diary's production is not compelled, e.g., it is found incident to a lawful arrest, its contents likely are admissible (assuming the entries were made voluntarily).

Nature of Proceedings

4. Nature of Proceedings The privilege extends to a witness in any proceeding, whether civil or criminal, formal or informal, if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34 (1924). However, the privilege cannot be invoked when the government requires civil records to be maintained and reported on for administrative purposes, because they are public records, unless those records fulfill a registration requirement of a select group of inherently suspect criminal activities and compliance would require self-incrimination. The privilege does not extend to identification requests at Terry stops. A violation occurs the moment the compelled statements are used against a person.

Nature of Proceedings

5.Nature of Proceedings a. Defendant's privilege A defendant who wishes to invoke the privilege simply invokes it by not taking the stand. Included in this right is the state's inability to compel the defendant to testify. The prosecution cannot bring the defendant's failure to take the stand to the jury's attention. b. Witness's privilege A witness, on the other hand, may be compelled to take the stand and can invoke the privilege only in response to a specific question when there is some reasonable possibility that answering the question will incriminate the witness. However, such an invocation after testimony has already been made may violate a defendant's right to confrontation, guaranteed by the Sixth and Fourteenth Amendments, if it prevents adequate cross-examination. Douglas v. Alabama, 380 U.S. 415 (1965).

Invocation of Privilege Should Not Impose a Burden

7. Invocation of Privilege Should Not Impose a Burden The state cannot penalize a defendant for invoking his right against self-incrimination by not testifying or cooperating with authorities. The prosecution cannot comment to the jury on the defendant's refusal to speak in accordance with his Miranda rights. A violation in this regard by the state triggers the harmless-error test. However, if during trial the defendant claims that he was not allowed to explain his story, then the prosecution may comment on the defendant's failure to take the stand.

The Privilege Against Compulsory Self-Incrimination

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. It is applicable to the states through the Fourteenth Amendment.

Persons

1. Persons A person means an individual. Artificial entities such as corporations, partnerships, and labor unions may not assert the privilege, but a sole proprietorship may. The privilege does not extend to the custodian of corporate records, even if production would incriminate the custodian individually.

Testimonial Evidence

2. Testimonial Evidence The privilege protects only testimonial evidence. Nontestimonial physical evidence (such as a blood or urine sample, Breathalyzer test result, handwriting exemplar, voice sample, or other evidence of physical characteristics) is not protected.

Waiving the Privilege

8. Waiving the Privilege A defendant waives the privilege by taking the witness stand; a witness waives the privilege by disclosing self-incriminating information in response to a specific question. Having taken the stand, the defendant cannot assert the privilege in response to the prosecution's proper cross-examination of his testimony, including impeachment questions.