Quiz 4

The Privilege Against Self Incrimination Applies only if there is Compulsion

1. Applies only when an individual is compelled to provide statements or testimony against himself. Determining what constitutes unconstitutional compulsion involves a question of judgement in which a court must decide whether the consequences of a choice to remain silent are closer to the physical torture against which the constitution protects or the de minimis harms which it does not.

Privilege against Self-Incrimination Is Available Only to Individuals

1. Only individuals- not legal entities or organization such as corporations, labor unions, or partnerships- may successfully invoke the privilege against self incrimination. 2. The privilege against self-incrimination does not shield official records and documents belonging to an organization that are held by an individual in her personal- rather than representative- capacity, even though production of the documents might tend to incriminate the individual personally.

Compelled Production of Documents and Other Things

1. The contents of an incriminating document or writing that was voluntarily created before the government asked for or discovered it cannot be shielded by the 5th because there was no compulsion. 2. The act of production of physical documents may be protected when there are components of the physical act that are both testimonial and incriminating. For example, compliance with a subpoena may serve to authenticate the items demanded and concede their existence. 3. The privilege against self, may not be invoked to resist compliance with regulatory regime, such as the one governing care and custody of children, constructed to effect the government's public purposes unrelated to the enforcement of its criminal law.

Right to Counsel: Showups

1. The defendant is entitled to have attorney present at any showup identification. No attorney makes it inadmissible 2. The prosecution can still try to elicit an in court identification from the witness if they can prove that the identification is based upon observations of the suspect and not the showup.

The Right to Counsel: Lineups

1. The defendant is entitled to have counsel present during any lineup identification. Any evidence or testimony in violation of the defendant's right to counsel is inadmissible 2. The prosecution can still try to elicit an in court identification from the witness if they can prove that the identification is based upon observations of the suspect and not the lineup.

Factors of a witness' ability to make an accurate ID

1. The opportunity of the witness to view the criminal at the time of the crime 2. The witness' degree of attention 3. the accuracy of the witness' prior description of the criminal 4. The level of certainty demonstrated at confrontation 5. The time between crime and confrontation

The Privilege against Self-Incrimination Protects Only Testimonial Evidence

1. The privilege against self-incrimination protects only testimonial evidence. In order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. 2. The privilege against self, does not prevent the compulsion of physical evidence, and as a consequence, the privilege is not violated when the defendant is compelled to stand in a lineup, to provide fingerprints, or to produce a sample of his blood, voice, handwriting, or other physical features.

Applies Only if there is a possibility of criminal liability

1. the privilege against self-incrimination applies only if the disclosures could expose a person to criminal liability. The privilege does not guard against revelations that may be embarrassing, create social stigma, or even expose someone to civil liability. 2. In order to successfully invoke the privilege against 5th, the danger of criminal prosecution must be real and appreciable

Applies only if there is compulsion

2. Statements or testimony may be considered compelled in a variety of situations: -When police subject an individual to custodial interrogation without first providing Miranda -When a court permits comments to be made or adverse inferences to be drawn at a critical trial or sentencing hearing based on the defendant's refusal to testify -When govt. inflicts serious economic harm, such as loss of employment, as a consequence of an individuals decision to not testify

3. Applies only if there is a possibility of criminal liability

3. The 5th should be given liberal construction, protecting not only those answers that would in themselves support a conviction under a criminal statute, but also those answers that would furnish a link in the chain of evidence needed to prosecute the claimant for a crime. 4. Disclosure of one's name is likely to be incriminating only in unusual circumstances.

3. Applies only if there is compulsion

3. The inherent psychological pressure to respond to unfavorable evidence at a criminal trial or in a post-conviction prison hearing requires that an individual make a difficult choice about whether to testify, but the psychological pressure and the related difficult choice do not rise to the level of unconstitutional compulsion in violation of the privilege against self-incrimination.

The Right to Counsel: Photo Arrays

A suspect is not entitled to have an attorney present at a pretrial photographic identification, regardless of whether the adversarial judicial proceedings have commenced.

Immunity and the Privilege against Self Incrimination

The government can overcome the privilege and compel testimony from an unwilling witness through a grant of immunity 1. Immunity from the compelled testimony in the criminal proceedings, as well as immunity from use of evidence derived from the testimony. 2. Transactional Immunity: immunity from prosecution for offenses related to the compelled testimony. The government is not obligated to provide transactional immunity in order to compel testimony; use and derivative use immunity is constitutionally sufficient. 3. If an individual is prosecuted following a grant of use and derivative use immunity, the prosecution has an affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of compelled testimony.

When should it be suppressed (ID)?

When the corrupting effect of law enforcement outweighs the witness' ability to make an accurate identification it should be suppressed.

Steps in order to Satisfy Unnecessarily suggestice

1. The identification procedure was suggestive 2. The suggestive aspects of the ID were arranged by the police 3. identification procedure was unnecessary 4. The ID procedure created a substantial likelihood of misidentification

Due process Challenges to Police Identification Procedure

A defendant may challenge a police identification procedure y showing it was unnecessarily suggestive and conducive to irreparable mistaken identity as to constitute a denial of due process.