Specific Examples of Applicability and Non-Applicability of the Privilege

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IV. Specific examples of applicability and non-applicability of the privilege

A. Not applicable against foreign prosecutions

In Balsys, 524 U.S. 666, the Supreme Court held that fear of a foreign prosecution does not come within the protection of the Fifth Amendment privilege against compelled self-incrimination. Id. at 698. The Court noted, however, that:

This is not to say that cooperative conduct between the United States and foreign nations could not develop to a point at which a claim could be made for recognizing fear of foreign prosecution under the Self-Incrimination Clause as traditionally understood. If it could be said that the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and if it could be shown that the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries, then an argument could be made that the Fifth Amendment should apply based on fear of foreign prosecution simply because that prosecution was not fairly characterized as distinctly "foreign." The point would be that the prosecution was as much on behalf of the United States as of the prosecuting nation, so that the division of labor between evidence gatherer and prosecutor made one nation the agent of the other, rendering fear of foreign prosecution tantamount to fear of a criminal case brought by the Government itself.

Whether such an argument should be sustained may be left at the least for another day, since its premises do not fit this case.

Id. at 698-99.

B. Not applicable during medical and psychiatric evaluations if not used in a criminal case

1. Court ordered competency to stand trial evaluation

In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that statements made during a court-ordered evaluation to determine competency to stand trial do not implicate the privilege against compelled self-incrimination, provided such statements are used for the limited purpose of determining competency to stand trial. In that case, the defendant was evaluated to determine whether he was competent to stand trial, but the evaluating doctor also testified in the death penalty phase of the case. The Court stated:

We can discern no basis to distinguish between the guilt and penalty phases of [the defendant's] capital murder trial so far as the protection of the Fifth
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