Barbri Crim Pro

Front 1

4th amendment-

Was the search governed by the 4th amendment?

Back 1

(1) was the search/seizure executed by a government agent? (2) Was there a reasonable expectation of privacy in the area searched or the items seized that was invaded by the government agents?

Front 2

4th amendment- was the search governed by the 4th amend.
(1) was the search/seizure executed by a government agent?

Back 2

(a) publically paid police, on or off duty; (b) private citizens only if they are acting at the direction of the police. (c) private security guards if they are deputized with the power to arrest (campus polcie at public universities), (d) public school administrators (principals, vice principals).

Front 3

4th amendment- was the search governed by the 4th amend.
(2) Was there a reasonable expectation of privacy in the area searched or the items seized that was invaded by the government agents?

Back 3

(1) protected areas: (a) persons, (b) houses-includes hotel rooms, (c) papers, and (d) effects- backpacks/purses. The protection of houses includes the area of domestic use immediately surrounding the house, "the curtiledge"
(2) does it invade the inidivuals reasaonble expectation of privacy- (a) the individual must have exhibited an actual or subjective expectation of privacy in the area search/items seized, and (b) the privacy expectation must be one that society recognizes as reasonable.
(3) Unprotected items- no reasaonble expectation of privacy. (Patty Achieved A Glorious Victory Over Her Opponents). (i) Paint scrapings on your car, (ii) Account records held by a bank, (iii) Air space (anything seen in public air space), (iv) Garbage left at the curb, (v) Voice exemplars, (vi) Odor- pariculary from car or luggage, (vii) Handwriting, (viii) Open field- anything that can be seen.
*knowing exposure to thrid parties

Front 4

Standing to challenge a search/seizure?

Back 4

An individuals personal privacy rights must be violated, not those of a third party.
(a) if they own the premises- yes
(b) if they dont own the premises, but the reside there- yes.
(c) dont own or resdie, but they are overnight guests- always as to areas overnight guests can be expected to access.
(d) dont own/reside/stay overnight- using only for business purposes: never.
(e) if they own the property seized- only if they have a reasonable expectation of privacy in the area from which the property was seized.
(f) only if they have a reasonable expectation of privacy in the area searched or the item seized.

Front 5

standing to challenge possession of a weapon in NY

Back 5

Passengers in cars can challenge possession of a weapon if possession is attributed to them.

Front 6

Does the search warrant under which criminal evidence was gathered satsify 4th amendment requirements?

Back 6

(1) is the warrant supported by probable cause and particularity?
(2) if not, did polcie officers rely on a defective warrant in good faith (MBE ONLY)
(3) was the warrant properly executed

Front 7

validity of warrant

was it supported by probable cause and particualrity

Back 7

(1) probable cause:
(a) majority- probable cause requires proof of a fair probability that contraband or evidence of crime will be found in the area searched, based on the totality of the circumstances.
(i) hearsay evidence is admissible for this.
(ii) informants tip- Police may rely on information obtained through an informants tip, even if the info is anonymous. The sufficiency of the informants tip rests on the corroboration by the police of enoguht of the tipsters infomration to allow the magistrate to make a common sense practical determination that probable cause exists. (b) **NY- Aguilar-Spinelli: must establish: (i) the informants basis of knowledge, and (ii) his or her veracity/reliability.
(2) particularity- the serach warrant must specify the place to be searched and the items to be seized.
*no general warrants that authorize a fishing expedition in private areas that could not house the evidence for which there was probable cause to serach.

Front 8

Validity of warrant

Does an officers "good faith" save a defective serach warrant

Back 8

**not in NY.
An officers good faith overcomes constitutional defects in probable cause and particularity, EXCEPT:
(1) the affidavit supporting the warrant application is so egregiously lakcing in probable cause that no reasaonble officer would have relied on it.
(2) The warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid.
(3) The affidiavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding (not negligent).
(4) The magistrate who issued the warrant is biased in favor of the prosecution.

Front 9

was the warrant properly executed by the police?

Back 9

(1) did the officers comply with the warrants terms and limitations - officers are allowed to serach only those areas and items authorized by the language of the warrant. (cant look places it dont fit)
(2) the knock and annouce rule. Requires the police to knock and announce their presence and their purpose before forcibly entering the place to be searched, unless the officer reasaonbly believes that doing so would be futile or dangerous or would inhibit the investigation.

Front 10

Was the Warrantless serach valid-- the exceptions

Back 10

"Escapist"
Exigent circumstances
Search incident to an arrest
Consent
Automobile
Plain view
Inventory
Special needs
Terry stop and frisk

Front 11

Warrantless serach

Exigent circumstances

Back 11

(a) Evanescent Evidence- evidence that would dissipate or disppear in the time it would take to get a warrant.
(b) Hot pursuit of a fleeing felon- (i) allows police, when looking for a suspect, to enter a suspects home or that of a third party into which he has fled, (ii) during hot pursuit, any evidence of a crime discovered in plain view while seraching for the suspect is admissible.
(c) Emergency Aid- police may enter a residence without a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury.

Front 12

Warrantless search

Search incident to arrest

Back 12

(A) arrest must be lawful.
(b) justifications: officer saftey and the need to preserve evidence.
(c) The search must be contemporaneous in time and place with the arrest.
(d) Geographic scope: The wing span, which includes the body, clothing, and any containers wihtin the arrestees immediate control wihtout regard to the offense for which the arrest was made. **NY to serach containers within the wingspan, police must suspect the arrestee is armed.
(e) Search of an automobile incident to a lawful arrest- (i) may serach the interior cabin of vehicle including closed containers, but not the trunk.(ii) Once an officer has secured an arestee (ex-handcuff/placed in car) the officer can serach the arrestee's vehicle only if he has reason to believe the vehicle may contain evidence relating to the crime for which arrest was made. **NY- once the occupant is out of the car, police cannot search closed containers or bags inside the vehicle to look for weapons or evidence of a crime.

Front 13

Warrantless search

Consent

Back 13

(A) must be voluntarily and intelligent. To satisfy this standard, polic eofficers do not need to tell someone they have the right to refuse to consent.
(b) an officers consent to search extends to all areas for which a reasonable officer woudl believe permission to search was granted.
(c) If a police officer obtains consent to search from someone who lacks actual authority to grant it, the consent is still valid under the 4th amend, provided the officer reasonbly believed that the consenting party had actual authority.
(d) shared premises- (i) when adults share a residence, any or all of them may consent to a search of the common areas within it, (ii) if co-tenants disagree regarding consent to search common areas, the objecting party prevails, as to areas over which the co-tenants share dominion and control.

Front 14

Warrantless serach

Automobile

Back 14

(A)Police officers need probable cause to believe that contraband or evidence of a crime will be found in the vehicle.
(B) They can search the entire vehicle, and may open any package, luggage, or other container that may reasoanbly contain the item for which there was probable cause to serach.
(c) traffic searches- sometimes what begins as a traffic stop results in a serach of the auto. To be lawful, an officer does not need probable cause at the time the car is pulled over, provided it acquires it bfore initaiting the search.

Front 15

Warrantless search

Plain view

Back 15

(1) lawful access to the place from which the item can be plainly seen,
(2) lawful access to the item itself, and
(3) the criminality of the item must be immediately apparent.
**NY- plain view seizure of obsecene material requires prior judicial authorization.

Front 16

Warrantless search

Inventory searches

Back 16

**usually when someone is being booked into jail, or when there car is being impounded.
They are constituional provided: (a) the regulations governing them are reasaonble in scope, (b) the serach itself complies with those regulations, and (c) the serach is conducted in good faith, that it, its motivated solely by the need to safeguard the owners possessions and/or to ensure officer saftey.

Front 17

Warrantless serach

Special needs

Back 17

(A) random drug testing- warranless random tests allowed- (i) railroad employees following an impact accident, (ii) customs agents who are responsible for drug interdiction, and (iii) public school children who participate in any extracurricular activities.
However, suspicionless drug tests are not permitted where their primary purpose is to gather criminal evidence for general use by law enforcement.
(B) Government employees desks and files- warrantless seraches of govt employees desks and files are permitted to investigate work related misconduct.
(C) students effects in public schools- permissible to investigate violations of school rules (such as prohibition on smoking).
(D) Border searches- neither citizens nor non-citizens have any 4th amendment rights at the border, with respect to routine seraches of persons and effects.

Front 18

Warrantless search

Terry stop

Back 18

(A) its a brief detention or "seizure" for the purpose of investigating suspcious conduct
(B) When are you Seized? - (i) when based on the totality of the circumstances, a reasoanble person would not feel free to leave or to declien an officers request to answer questions. (ii) In evaluating, consider- whether an officer brandishes a gun, his tone and demeanor, and whehter they were told they have the right to leave.
(3) purusit and seizure-
(A) Fed- when being pursued by an officer, a person is seized only if he submits to the officers authority by stopping, or if the officer physically restrains him.
NY- police pursuit is a seizure in and of itself.
(4) seizure and traffic stops- during a traffic stop, both the driver and passengers are seized, such taht either can challenge the legality of the stop.
(A) dog snifs- permissible at traffic stops provided it does not prolong the stop unreasoanbly.

Front 19

Warrantless search

Terry Frist

Back 19

- it is a pat down of the body and outer clothign for weapons that is justified by an officers belief that a suspect is armed and presntly dangerous.
(b) what can u seize? (I) if the officer finds a weapon, it can always be seized. If they find something they recognize as contraband without manipulating it, the can seize it as well. **NY- officers can seize an item only if it feels like a weapon.
(C) Car frisk- when conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspects vehicle, limited to those areas in which a weapon may be placed or hidden.
(D) protective sweep- when making an in home arrest, police may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer saftey.

Front 20

Evidentiary standard for terry

Back 20

Reasonable suspicion. (less than probable cause).
(A) Terry stops- specific and articulable facts that inform an officers belief that criminal activity is present. (i) an officers subjective intent is irrelevant in evaluating the legality of the stop; the 4th amendment is concerned solely with its objective reasaonbleness.
(B) Terry Frisks- requires specific and articulable facts a suspect is armed and presently dangerous. (justified by a concern for officer saftey, not a general search for criminal evidence.
(C) Protective sweeps- may sweep the area immediately ajoining the plae of arrest, provided there is reasonable suspicion that the house harbors a person who poses a danger to those on the arrest scene. (i) to justify a sweep of more remote areas, the arresting officers must have additional facts sufficient to allow a reasoanbly prudent officer to conclude that an indiviudal who may threaten officer saftey is present in the area swept.

Front 21

use of unconstitutional evidence in court

Exclusionary rule

Back 21

Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constituional provision is inadmissible in court against the indiviudal whose rights were violated.
Limits:
(a) unconstituionally obtained evidence is excluded from prosecutors case in chief only, it may be introducted to impeach the D's testimony on cross.
(2) knock and announce- a failure to comply with the rule does not require suppression of the evidence subsequently discovered
(3) police miscondcut- to trigger application of the exclusionary rule, police misconduct must be dilberate, reckless, or grossly negligent.
(4) The exclusionary rule does not apply to evidence erroneously obtained when executing a serach warrant, provided an officers mistake was reasonable.

Front 22

unconstitutional evidence

fruit of the poisonous tree

Back 22

Derivative evidence- evidence, both physical and testimonial, can be obtained by exploiting prior unconstitutional conduct (confession from prior unlawul arrest). This derivative evidence is called fruit of the poisonous tree, and is inadmissible during prosecutors case in cheif
(B) to nullify fruit of the poisonous tree, prosecutor must showa break in the causal link between the original illegality and the criminal evidence later discovered.
(1) independent source- applies where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality.
(2) Inevitable discovery- applies where the evidence would necessarily have been discovered through lawful means.
(3) attenuation- admits derivative evidence where the passage of time and intervening events perge the taint of the original illegality and restore the defendants free will.

Front 23

Wiretapping warrant requirement

Back 23

"screen telephone calls carefully"
Suspected persons- must name the persons whose conversations are to be overheard.
Crime- must be probable cause that a specific crime has been committed.
Conversations- warrant must described with particuarlity the conversations that can be overheard.
Time- must be for a strictly limited time period.

Front 24

Eavesdropping

Back 24

If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th amendment claim. You assume the risk that the other party will not keep your conversaton private.

Front 25

Arrest

Back 25

whenever the police take someone into custody against her will for prosecution or interrogation. It is considered a de facto arrest when police compel someone to come to the police station for fingerprints, or questioning.
(2) Need probable cause
(3) the 4th amendment permits custodial arrest for all offenses, including those punishable by a monetary fine only.

Front 26

Arrest-

when do you need a warrant to arrest someone

Back 26

(1) police do not need a warrant to arrest someone in a public place.
(2) Absent an emergency, police need a warrant to arrest someone in their home.
(3) To arrest someone in the home of a thrid party, police need an arrest warrant, and a search warrant.

Front 27

Arrest-
Common enterprise theory

Back 27

In a traffic stop, where a police officer discovers evidence of crime that suggests a common unlawful enterprise between the driver and passengers, the officer may arrest any or all of the tem, based on the reasonable inference of shared dominion and control over the contraband.

Front 28

Challenging a confession

Back 28

usually done under:
(1) 14th amendment due process clause
(2) sixth amendment right to counsel
(3) 5th amendment miranda doctrine
*NY- D's can also challenge a confession under NY's indeligible right to counsel, which derives from 6th amendment of state constition.

Front 29

Excluding a confession under due process clause

Back 29

standard: involuntariness, which means that the confession is the product of police coercion that overbears the suspects will.

Front 30

Excluding a confession under the 6th amendment

Back 30

(A) this is an express constituional guarantee.
(b) attaches when the D is formally charged, not upon arrest.
(c) applies at all "critical stages" of the prosecution that take place after the formal filing of charges.
(d) is offense specific- applies only to the charges filed against you, no protection for uncounseled interrogation for other uncharged criminal activity.
(e) incriminating statements obtained from the D by law enforcement about charged offenses violate the 6th amend if those statements are deliberately elicited and the D did not knowingly, intelligently, and voluntarily waive his right to have his attorney present.

Front 31

excluding a confession under NY's indeligible right to counsel

Back 31

(a) provides greater protection than the 6th amend.
(b) attaches not only at formal charging, but also whenever there is significant judicial activity/activity overwhleming an ordinary person before the filing of an accusatory instrument such that D may benefit from the presence of counsel.
(c) If D is taken into custody for questioning on a charge and the police are aware that he is represented by counsel on that charge, they may not question him about that charge, or any other matter without his attorney present.
(d) if D is represented by counsel, waiver of the indelible right to cousnel must take place in the presence of the attorney.

Front 32

excluding a confession-

5th amendment miranda

Back 32

(a) miranda rights are implied rights grounded in the self incrimination clause of the 5th amendment
(4) 4 core warnings: (i) right to remain silent, (ii) anything you say can and will be used against you in a court of law, (iii) right to an attorney, (iv) if you cannot afford one, one will be appointed for you.
(c) when are they necssary?
(i) Custody- if the atmosphere, viewed objectively is characterized by police dominion and coercion such that his/her freedom of action is limited in a significant way.
(ii) Interrogation- any conduct the police knew or should have known was likely to elicit an incriminating response.
*does not apply to incriminating statements made spontaneously, because they are not the result of interrogation.

Front 33

Miranda-

public saftey exception

Back 33

if a suspect is subjected to custodial interrogation, the miranda doctrine applies, except if custodial interrogation is prompted by an immediate concern for public saftey, miranda warnings are unncessary and any incriminating statements are inadmissible against the suspect.

Front 34

Conveying miranda rights

Back 34

unless public saftey exception applies, incriminating testimonial responses obtained through custodial interrogation are admissible provided the officer, before iniating questioning (a) reasonably conveys to the suspect his or her core miranda rights, and (b) thereafter obtains a valid waiver of the suspects miranda rights to silence and counsel.

Front 35

A valid miranda waiver

Back 35

(1) knowing and intelligent- (a) if the suspect understands the nautre of the rights, and (b) the consequences of abandoning.
(2) voluntary- if it is not the product of police coercion.
**NY- if the police use deception or concealment to keep a parent away from a child who is being interrogated, the childs waiver may be deemed invalid.
(B) executing the waiver- waiver need not be express, it may be implied by a course of conduct that indicates the desire to speak with police interrogators. (a) if a suspect has recieved and understands his miranda rights, he waives his right to remain silent by making an uncoerced statement to the police.
(3) burden of proof- prosecution bears burden by a preponderance of the evidence.

Front 36

Invoking miranda rights

-invoking the right to remain silent

Back 36

(1) suspects must unambiguously invoke their right to remain silent (they must say it).
(2) Once they invoke the right, police must scrupulously honor the invocation. At least, they cannot (a) badger a suspect into talking, (b) must wait a significant period of time before reinitiating questioning, and (c) must first obtain a valid waiver of miranda before reinitiating questioning.

Front 37

Invoking miranda-

invoking the right to counsel

Back 37

(a) once a suspect asks for counsel, all interrogation must cease unless initiated by a suspected.
(b) request for counsel must be sufficinetly clear that a reasonable officer in the same situation would understand the statement to be a request for counsel.
(c) unlike 6th amend, 5th amend right to counsel is not offense specific, therefore, interrogation following a request for counsel under miranda is prohibited as to all topics, outside the presence of the suspects attorney.
(d) the request for counsel expires 14 days after a suspect is released from custody, any waiver outside this period is valid if it is knowing, intelligent and voluntary.

Front 38

Limitations on evidentiary exclsuion as applied to Miranda violations

Back 38

(1) Incriminating statements obtained in violation of a suspects Miranda rights are inadmissible in the prosecutions case in chief but may be used to impeach the D’s testimony on cross-examination, but not the testimony of third party witnesses.
(2) Failure to give a suspect Miranda warnings does not requires the suppression of the physical fruits of incriminating statements, provided the statements are voluntary.
(3) if a statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining a waiver are admissible, provide the initial, non-mirandized statement was not obtained through the use of inherently coercive police tactics, offensive to due process.
(2) Failure to give a suspect Miranda warnings does not requires the suppression of the physical fruits of incriminating statements, provided the statements are voluntary. .
(3) if a statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining a waiver are admissible, provide the initial, non-mirandized statement was not obtained through the use of inherently coercive police tactics, offensive to due process.

Front 39

If testimonial evidence is obtained in violation of Miranda was improperly admitted, and D was convicted, is the court required to vacate?

Back 39

Depends. The guilty verdict will stand if the government can prove, beyond a reasonable doubt, that the error was harmless b/c the D would have been convicted without the tainted evidence. (also applies to physical evidence improperly admitted under 4th)

Front 40

Challenges to pretrial IDs

Back 40

(1) denial of right to counsel
(2) violation of due process

Front 41

Challenge to pretrial ID

Denial of right to counsel

Back 41

(a) 5th amendment- there is no fifth amendment right to counsel under Miranda for pretrial ID.
(b) 6th amendment- A right to counsel exists at line ups and show ups that take place after charging, but not a photo arrays
•NY- greater protection for suspects. Right to an attorney at a line up before the filing of formal charges if you are aware you have counsel and request that they be present.

Front 42

Challenge to pretrial ID

violation of due process

Back 42

Standard: A pretrial identification procedure violates the due process clause of the 14th amendment when it is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification.
Proof: courts must weigh (a) the reliability of a suggestive identification against (b) its corrupting effect.

Front 43

Remedial considerations for pretrial line up

Back 43

oThe remedy is the exclusion of the witnesses in court identification
oHowever, it will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional pretrial ID. To make this showing, DA can use factors such as: (i) witnesses opportunity to view the D at the crime scene, (ii) the certainty of the witness’s identification, and (iii) the specificity of the description given to the police.

Front 44

Grand juries

Back 44

•Issue indictments
•Proceedings are secret
•States don’t have to use them, and most don’t.
•*NY- indictments must establish all elements of the offense and provide reasonable cause to believe the accused committed the offense.

Front 45

Pretrial detention

Back 45

•Standard: government needs probable cause both to bind a D over for trial and to detain him in jail before trial.
•Detention hearing: to determine probable cause (Gerstein hearing), is unnecessary if: (a) the grand jury has issued an indictment, or (b) a magistrate has issued an arrest warrant.
•First appearance- brought before magistrate who will: (a) advise him of his rights, (b) set bail (bail decision is immediately appealable), and (c) appoint counsel if necessary.

Front 46

Trial Rights.

Back 46

•Evidentiary disclosure: A prosecutor must disclose to a criminal D all material exculpatory evidence. (Brady)
•Judges: right to an unbiased judge. (a) judge has no financial stake in the outcome of the case, and (b) judge has no actual malice toward D.
•Juries: (1) Right to jury trial- criminal D’s have right to jury trial when the max authorized sentence exceeds 6 months. There must be at least 6 jurors in a criminal trial. **NY- requires 12 person juries, however a D can waive this and proceed to verdict with 11 jurors.
•Jury verdicts must be unanimous only if 6 jurors are used, verdicts in 12 juror trails need not be. **NY- requires unanimous verdicts.
•Cross sectional requirement- requires that the pool from which the jury is drawn represents a cross section of the community, an all white jury does not violate if it was picked from a representative pool.

Front 47

peremptory challenge

Back 47

permit both sides to exclude jurors without stating their reasons for doing so, but they cannot be used to exclude prospective jurors on the basis of race or gender.

Front 48

Confronting an adverse witness

Back 48

D’s 6th amendment right to confront adverse witnesses does not apply where face to face confrontation would contravene important public policy concerns. (traumatizing a child witness)

Front 49

Right to effective assistance of counsel.

Back 49

(1) counsels performance was deficient, and (2) but for the deficiency, the outcome of trial would have been different. (not usually successful).

Front 50

Guilty plea

Back 50

•Valid plea: judge must establish that it is voluntary and intelligent.
The colloquy: conducted by judge, in open court and on the record, addressing: (a) the nature of the charges (including required elements), and (b) the consequences of the plea.

Front 51

withdrawing a guilty plea

Back 51

a D may withdraw a plea after sentencing only if: (a) the plea is involuntary due to a defect in the colloquy, (b) there is a jurisdiction defect, (c) the D prevails on a claim of ineffective assistance of counsel, or (d) the prosecutor fails to fulfill their part of the bargain.

Front 52

Punishement.

Back 52

•Eighth amendment: prohibition against cruel and unusual punishment disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed.
oThe death penalty: statute would violate the 8th amendment if it created an automatic category for the imposition of the death penalty. In deciding whether to impose death, jurors must be allowed to consider all mitigating evidence. 8th amendment prohibits death penalty against: (a) Ds with mental retardation, (b) D who are presently insane, and (c) Ds who are under 18 at the time the relevant offense occurred.

Front 53

Double Jeopardy

Back 53

•Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb by the same sovereign.
•When it attaches: (a) when the jury is sworn in jury trial, or (b) in bench trial when the first witness is sworn, or (c) when the court accepts the D’s plea unconditionally
•Does not apply to civil proceedings.
•The same offense requirement:
oFed- two offenses are not the same if each contains an element the other does not.
oNY- “the transaction test” requires that a D be charged with all offenses arising from any single transaction unless: (1) the offense shave substantially different elements, (2) each contains an element not in the other and they vindicate different harms, (3) one is for possession and the other use, or (4) each involved harm to a different victim.
oIncludes greater and lesser included offenses- double jeopardy applies.
•Same sovereign: double jeopardy bars retrial for same offense by same sovereign only. States and the municipalities within them are the same sovereign. Fed-state, state A-State B are not.

Front 54

Exceptions to double jeopardy

Back 54

o(1) a hung jury
o(2) a mistrial for manifest necessity
o(3) a successful appeal, unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial, and
o(4) a breach of the plea agreement by the D.

Front 55

5th amend.

Back 55

•Anyone may assert the privilege.
•Can be asserted in any proceeding in which the witness testifies under oath
o*NY- cant be asserted in a grand jury proceeding.
•Must be asserted at the first opportunity or it is forever waived.
•It is a testimonial privilege that protects us from compelled testimony only, not states use of our bodies
•Disallows negative prosecutorial comment on either a D’s: (a) decision not to testify at his trial, or (b) the invocation of his right to counsel or silence.
•Can be convicted based on evidence collected before the grant.

Front 56

5th amend. EXCEPTIONS/ELIMINATE

Back 56

oGrant of immunity- prosecutors can grant use and derivative use immunity, which bars the government from using your testimony or anything derived from it to convict you. **NY uses transactional immunity- broader, shields witnesses from prosecution for any transaction they testified about in their immunized testimony.
oD taking the stand- by taking the stand D waives the ability to take the fifth as to anything properly within the scope of cross.
oStatute of limitations- privilege is unavailable if the statue of limitations has run on the underlying crime since a witnesses testimony could not expose him or her to criminal prosecution.