§ 43.07 KEY POINTS

• Jurisdiction: United States

§ 43.07. KEY POINTS

There are several components to the Self-Incrimination Clause: (1) compulsion to provide (2) testimonial evidence (3) that would subject the person to criminal liability.

Compulsion requirement. A subpoena requiring a person to testify at trial is the paradigmatic example of compulsion within the meaning of the Eifth Amendment.

Criminal liability requirement. Two points deserve attention. Eirst, it is the exposure to possible criminal liability, rather than the forum in which the privilege is asserted, that is determinative. Thus, a witness can assert the privilege in civil trials, civil depositions, congressional hearings, or administrative proceedings. Second, immunity is used to elicit testimony from witnesses who assert the privilege against self-incrimination. In effect, immunity takes away the Eifth Amendment privilege because persons receiving immunity are no longer exposed to criminal liability.

"Testimonial-real" evidence distinction. The Supreme Court has held that the privilege applies to testimonial or communicative evidence, not real or physical evidence. Thus, a person may be compelled to provide specimens of blood, handwriting, fingerprints, voice, dental impressions, and urine without violating the privilege. Similarly, the trial court may require the accused to speak for identification at trial or put on a stocking mask so...