4.3.2 Scope

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

4.3.2 Scope

Before deciding whether, either at trial or before, an accused has properly asserted the privilege against self-incrimination, two key matters must be resolved. First, what statement or testimony is incriminating? Second, to what statements can a defendant's privilege extend? The Supreme Court has held that self-incrimination must be interpreted broadly. An individual may refuse to answer any question when the answer would "furnish a link in the chain of evidence needed to prosecute."¹⁹

Once a witness asserts that the response to a question would be incriminating, the judge can overrule the claim if the prosecutor makes it "perfectly clear" that the answer cannot tend to incriminate.²⁰ Generally, courts lean strongly on the side of supporting the individual's claim of the privilege, since the state can always force the witness to respond by a grant of adequate immunity. Should the judge erroneously order a witness to testify, the order would constitute compulsion for Fifth Amendment purposes, and the witness should be protected from admission of the resulting testimony against the witness. If the witness then lies, however, she may be prosecuted for perjury.²¹

The privilege against self-incrimination extends only to testimonial evidence.²² The seizure of "real or physical" evidence from a defendant does not implicate any Fifth Amendment rights, although it may fall under the protections of the Fourth Amendment, depending on the circumstances.²³ Physical evidence encompasses a wide variety of items that can be taken from a defendant once in custody.

Practice Tip

When the prosecution asserts that evidence, the admissibility of which is contested, has no Fifth Amendment privilege protection, that evidence may have been seized as a result of a search that is unlawful under the Fourth Amendment. The legality of the arrest, the requirement for a search warrant, the scope of the search, and/or the fruit of the poisonous tree doctrine can all apply to exclude evidence not protected by the privilege against self-incrimination.

Fingerprints from the defendant can be used; she can be required to stand in a lineup and to submit to a photograph or mug shot.²⁴ Making a defendant give a blood sample is not considered a violation of the Fifth Amendment privilege.²⁵ Also, law enforcement officers may require a suspect to give hair, voice, and handwriting samples²⁶ without violating the privilege.²⁷ All of these samples are allowed because the Supreme Court has...