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Self Incrimination

Privilege Against Self-Incrimination: Rationales. Avoiding the cruel trilemma" (self-accusation, perjury, contempt)Humane TreatmentFair state-individual balanceInviolability of the Human Personality. Scope of the Privilege. Natural" persons (including sole proprietors)(collective entities rule

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Self Incrimination

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    1. Self Incrimination

    2. Privilege Against Self-Incrimination: Rationales Avoiding the “cruel trilemma” (self-accusation, perjury, contempt) Humane Treatment Fair state-individual balance Inviolability of the Human Personality

    3. Scope of the Privilege “Natural” persons (including sole proprietors)(collective entities rule) Government compulsion – statement is in response to some government request for information Incrimination – substantial and real hazard that response could be incriminating Testimony – communicative acts

    4. Compulsion Privilege does not apply to voluntary statements Compulsion exists where government penalizes assertion No comment rule (Griffin v. CA)(exceptions: civil cases, defense “opens door”) Case-by-case analysis of compulsion versus acceptable pressures (magnitude of burden, state interest, immediacy)

    5. Incrimination Applies to proceedings in which statement may be used, not in which it is compelled Doesn’t apply to prosecutions by foreign sovereign (US v. Balsys) Applies to sentencing proceedings (Mitchell v. US) Link in chain of evidence

    6. Testimony Privilege pertains to “testimonial” (communicative), not “non-testimonial” (physical) evidence May pertain to testimonial evidence taken in place of physical evidence (SD v. Neville)

    7. Invoking the Privilege Defendant cannot be forced to take stand; prosecution cannot comment Witness can be forced, but asserts privilege question by question

    8. Problem 9-5 Is balancing on one leg “testimonial”? Is response about birthday “testimonial”? PA v. Muniz

    9. Compelled Production of Documents “Required Records” exception(regulatory, customary, public aspect) Pre-existing documents are not compelled Act of production doctrine (existence, possession, authenticity)

    10. Problem 9-9 Does the collective entity rule apply? Are content of documents protected? Is act of production protected?

    11. Problem 9-12 Contents privileged? Act of production privileged? Is calendar personal or corporate?

    12. Immunity Involves exercise of prosecutorial discretion Protects witness from use of testimony in subsequent criminal prosecution Use, derivative use, transactional immunity Enables government to compel responses without violating Fifth Amendment Perjury exception “Act of production immunity” (US v. Hubbell)

    13. Next time: Eyewitness Identifications, pp. 788-818

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