The Fifth Amendment protects individuals from having to testify if they may incriminate themselves through their testimony. A witness may “plead the Fifth” and not answer if the witness believes answering the question may be self-incriminating.
To be self-incriminating, the compelled answers must pose a “substantial and ‘real threat of incrimination. When a truthful answer to a question or request is not incriminating or would otherwise lead to discovery of evidence that’s incriminating then the witness cannot refuse to answer a question by asserting the fifth amendment
In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966). Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.
However, courts have since then slightly narrowed the Miranda rights, holding that police interrogations or questioning that occur prior to taking the suspect into custody does not fall within the Miranda requirements, and the police are not required to give the Miranda warnings to the suspects prior to taking them into custody, and their silence in some instances can be deemed to be implicit admission of guilt.
If law enforcement fails to advise a person in custody of his Miranda rights, courts will often suppress any statements by the suspect as violating the Fifth Amendment protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events.
If a suspect makes a spontaneous statement while in custody prior to being made aware of his Miranda rights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement.
The Fifth Amendment right protects incriminating evidence that is testimonial. Whether or not the right extends to records depends on the circumstances. In the case of a grand jury subpoena seeking disclosure of records, the right does not extend to incriminating records specifically identified that the government is already aware of. However, the government must identify such records with particularly. In other words, it cannot go on a fishing expedition and make a general claim for records in hopes of finding something incriminating.
In such an instance the Fifth amendment right protects the individual from being compelled into disclosing such records. Similarly, the right does not extend to potentially incriminating evidence derived from obligatory reports or tax returns.
Under the Act of Production Doctrine, the act of an individual in producing documents or materials (e.g., in response to a subpoena) may have a “testimonial aspect” for purposes of the individual’s right to assert the Fifth Amendment privilege against self-incrimination to the extent that the individual’s act of production provides information not already in the hands of law enforcement personnel about the (1) existence; (2) custody; or (3) authenticity, of the documents or materials produced.
To circumvent a subject’s refusal to answer questions or provide documents based on the Fifth Amendment, the U.S. Attorney can provide the witness derivative use immunity as authorized by 18 U.S.C. § 6002. When a witness testifies pursuant to court-ordered statutory immunity, “no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”
This is a tool prosecutors often rely on when the witness asserting the Fifth Amendment is a lower level member of a broader criminal enterprise or conspiracy. In theory, use and derivative use immunity provides as much protection as the witness not testifying. However, use and derivative use immunity doesn’t prevent prosecutors from gathering additional, independent evidence to later use against a witness.
If, while testifying, a witness gives an indication of having committed a crime and the prosecution obtains independent evidence of that crime (from a source distinct from the witness), then the witness is subject to prosecution for that crime.
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