Self-incrimination

• Author: Robert K. Gill/Mark Daniel
• Pages: 249-310

SELF-INCRIMINATION

5-1

CHAPTER 5

SELFINCRIMINATION

I. GENERAL POINTS: SELFINCRIMINATION AND WAIVER

§5:01 Constitutional and Statutory Provisions

§5:02 Fifth Amendment Applies

§5:03 Fifth Amendment Does Not Apply

§5:04 Fifth Amendment Waived by Presenting Evidence

§5:05 Fifth Amendment Waived by Agreement

II. HANDWRITING AND FINGERPRINTING

§5:10 Handwriting Exemplars

§5:11 Fingerprinting Defendant

III. LIMITING SCOPE OF CROSSEXAMINATION OF DEFENDANT

A. Limiting Scope on Preliminary Issues

§5:20 The Rule

§5:21 Motion to Limit Scope of Cross-Examination at Pre-Trial Hearings

§5:22 Motion to Limit Cross-Examination on Preliminary Issues

B. Hearings on Preliminary Mat ters

§5:30 Conducted Out of Presence of Jury When Requested

§5:31 Motion to Conduct Hearing Out of Presence of Jury

C. Limiting Scope at Trial

§5:40 Preventing Use of Defendant’s Previous Testimony at Trial

§5:41 Motion in Limine to Prohibit Use of Defendant’s Previous Testimony

IV. IMMUNIT Y AGREEMENTS

§5:50 Purpose of Immunity Agreements

§5:51 Authority for Immunity Agreements

§5:52 Statutory Immunity Provisions

§5:53 State’s Application for Use and Derivative Use Immunity

§5:54 Agreements for Use and Derivative Use Immunity

§5:55 Defendant’s Motion for Grant of Immunity

§5:56 Enforcing a Grant of Immunity

§5:57 Suppressing Statements and Evidence Obtained Under Immunity Agreement

§5:58 Motion in Limine to Prevent Use of Testimony and Evidence Obtained Under

Immunity Agreement

V. POSTARREST SILENCE

§5:60 Defendant’s Post-Arrest Silence

§5:61 Motion in Limine to Prevent Use of Post-Arrest Silence

SELF-INCRIMINATION

Texas Criminal Forms 5-2

§5:62 Witness’s Invocation of Fifth Amendment

§5:63 Motion in Limine—Witness Invoking Fifth Amendment

§5:64 Fifth Amendment Protections and Technology

VI. CONFIDENTIAL COMMUNICATIONS

§5:70 Authority

§5:71 Motion to Suppress Privileged Communications

§5:72 Motion to Invoke Privilege Out of Presence of Jury

§5:73 Motion in Limine Prohibiting Mention of Privileged Communications

VII. SUPPRESSING EVIDENCE OBTAINED THROUGH FIFTH AMENDMENT VIOLATIONS

A. General Points

§5:80 Fifth Amendment Law in General

§5:81 Motion to Suppress Due to Fifth Amendment Violation

B. Psychiatric Testimony

§5:90 Suppressing Psychiatric Testimony Due to Fifth Amendment Violation

§5:91 Motion to Suppress Psychiatric Testimony Due to Fifth Amendment Violation

C. Documents

§5:100 Suppressing Documents Obtained Through Fifth Amendment Violations

§5:101 Suppressing Documents Obtained in Violation of Fifth Amendment

§5:102 Dismissal of Charges Due to Fifth Amendment Violation

§5:103 Motion to Dismiss Due to Fif th Amendment Violation

§5:104 Motion in Limine Evidence Obtained Due to Fif th Amendment Violation

D. Garrity Rights

§5:110 Garrity Rights

§5:111 Case Law

VIII. FORMS

Form 5-1.1State’s Motion to Order Defendant to Submit to Mental Status Examination

and Alternative Motion to Exclude Defendant’s Mental Status Evidence

Form 5-1.2Agreement to Waive Fifth Amendment

Form 5-1.3Memo of Understanding Regarding Client’s Fifth Amendment Rights

Form 5-1.4Motion To Seal Memo Between Client and Counsel

Form 5-2Handwriting Exemplar

Form 5-3State’s Motion to Fingerprint Defendant

Form 5-4Motion to Limit Scope of Cross-Examination at Pre-Trial Hearings

Form 5-5Rule 104(d) Motion to Limit Scope of Cross-Examination

Form 5-6Motion in Limine to Prohibit Use of Defendant’s Previous Testimony

Form 5-7.1Proffer Interview Conditions

Form 5-7.2State’s Application for Use and Derivative Use Immunity

Form 5-8Agreement for Use and Derivative Use Immunity

Form 5-9Defendant’s Motion for Grant of Immunity

Form 5-10.1Defendant’s Motion to Enforce Immunity Agreement

Form 5-10.2State’s Motion to Compel Testimony and Grant Use Immunity

Form 5-11Motion to Suppress Statements and Evidence Obtained Under Immunity Agreement

Form 5-12Motion in Limine to Prevent Use of Testimony and Evidence

Obtained Under Immunity Agreement

Form 5-13Motion in Limine to Prevent Use of Post-Arrest Silence

Form 5-14.1Motion in Limine—Witness Invoking Fifth Amendment

Form 5-14.2Motion to Suppress Search of Encrypted or Password-

Protected Device Due to Fifth Amendment Violation

Form 5-14.3Motion in Limine Prohibiting Mention of Defendant’s

Refusal to Reveal Password or Decryption

Form 5-15Motion to Suppress Privileged Statements

SELF-INCRIMINATION

5-3 Self-Incrimination

Form 5-16Defendant’s Brief in Support of Motion to Suppress Privileged Statements

Form 5-17Motion to Invoke Privilege Out of Presence of Jury

Form 5-18Motion in Limine Prohibiting Mention of Privileged Communications

Form 5-19Motion to Suppress Due to Fifth Amendment Violation

Form 5-20Defendant’s Brief in Support of Motion to Suppress

Statement Due to Fifth Amendment Violation

Form 5-21Suppression of Psychiatric Testimony Due to Fifth Amendment Violation

Form 5-22Motion to Suppress Documentary Evidence Obtained in Violation of Fifth Amendment

Form 5-23Motion to Dismiss Due to Fifth Amendment Violation

Form 5-24Motion in Limine (Evidence Obtained Due to Fifth Amendment Violation)

Form 5-25Application for Writ of Habeas Corpus To Dismiss Indictment

Form 5-26Motion To Recuse Criminal District Attorney’s Off‌ice From Proceedings