Self-Incrimination

• Author: Robert K. Gill/Mark G. Daniel
• Pages: 189-232

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 Matters

§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. Immunity Agreements

§5:50 Purpose of Immunity Agreements

§5:51 Authority for Immunity Agreements

§5:52 Statutory Immunity Provisions

Texas Criminal Forms 5-2

§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

§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 Fifth Amendment Violation

§5:104 Motion in Limine Evidence Obtained Due to Fifth Amendment

Violation

VIII. Forms

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

Alternative Motion to Exclude Defendant’s Mental Status Evidence

Form 5-1.2 Agreement to Waive Fifth Amendment

Form 5-2 Handwriting Exemplar

Form 5-3 State’s Motion to Fingerprint Defendant

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

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

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

Form 5-7 State’s Application for Use and Derivative Use Immunity

Form 5-8 Agreement for Use and Derivative Use Immunity

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

5-3 selF-inCriminaTion

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

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

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

Immunity Agreement

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

Immunity Agreement

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

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

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

Fifth Amendment Violation

Form 5-14.3 Motion in Limine Prohibiting Mention of Defendant’s Refusal to Reveal Password

or Decryption

Form 5-15 Motion to Suppress Privileged Statements

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

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

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

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

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

Amendment Violation

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

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

Fifth Amendment

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

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