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Privilege against self-incrimination (ASSERTION (Must give immunity to…
Privilege against self-incrimination
COMPULSION
Sworn testimony under oath
custodial police interrgoation
Miranda req
where choice to invoke impermissibly penalized
comment on choice not to testify
NOT
appearance before probation officer
INCRIMINATION
consequences of truthful answer
suff. serious risk of prosecution
real and probable
criminal penalty: leg intent, or statuory scheme so punitive in intent
NOT:
civil forfeiture
benign purpose of providing treatment to sex offenders
disclosure of identity
RESERVE hard cases: where a link in the chain of evidence
fear of gang retaliation
gov't investigation not in criminal context
TESTIMONY
witness against oneself
mental math questions
NOT
routine booking questions
blood sample or physical evidence
slurred speech - communicate only physical characteristics
handwriting/voice sample
lineup
critical stage - r2c attaches
wear particular clothing
ASSERTION
Must give immunity to seek
BUT no immunity required for foreign jurisdictions
TransactionalL: any offense related to testimony
MUST GRANT: Use and Fruits: use of testimony in proceedings as well as use of ev derived from testimony
NON CUSTODIAL INTERVIEW
must expressly invoke - Salinas plurality
BUT NOT REQ IF
Miranda - if no warnings, don't need to invoke
absolute right not to testify at trial - GRIFFIN
forms
threats
CUSTODIAL INTERVIEW
cannot be asserted by corporations - neither custodians of corporate documents
ACT OF PRODUCTION: existence, authenticity, possession
unless assumed custodial duties relating to production + non criminal regulatory regime
not where functionally interrogatories/contents of mind
EXCEPTIONS:
Perjury prosecution, even if given immunity
Opened door - make statements, waives privilege as to details
Required Records
Act of production
testimonial regarding: existence, authenticity, possession
But if foregone conclusion, no 5A rights
contents of docs are not protected by privilege