The privilege of silence : Fifth Amendment protections against self-incrimination

This book recognizes that the practicing lawyer's library lacks a comprehensive guide to the application of the Fifth Amendment privilege against self-incrimination. As was true for the first edition, the second edition is designed to fill that void and to become a basic research tool to aid lawyers in thinking about and applying the Fifth Amendment privilege in various contexts and proceedings. It does so by providing a guide for both the civil litigator who may confront the privilege infrequently as well as the criminal lawyer who seeks to advance his or her client's interests through creative application of the Fifth Amendment. Most importantly, it attempts to organize the relevant case law so that lawyers may more effectively advise and represent their clients. Book jacket.

• Preface p. vii
• About the Authors p. ix
• Introduction p. xi
• Chapter 1 The Purpose and Scope of the Fifth Amendment Right Against Compulsory Self-incrimination p. 1
• A Very Brief History of the Fifth Amendment p. 1
• Values Served by the Fifth Amendment p. 4
• Chapter 2 Elements of the Fifth Amendment p. 11
• The Meaning of Self-incrimination p. 11
• The Meaning of Compulsion p. 22
• General Propositions p. 22
• Private Compulsion vs. Government Compulsion p. 30
• The Meaning of Testimonial Communication p. 36
• Absence of a Fifth Amendment Privilege for Collective Entities p. 45
• Chapter 3 Proceedings in Which the Fifth Amendment May Be Asserted p. 57
• Assertions of the Fifth Amendment Right Against Self-incrimination in Criminal Proceedings p. 61
• During Custodial Police Interrogation p. 61
• During Non-Custodial Police Interrogation p. 78
• During Grand Jury Proceedings p. 81
• During Pretrial Proceedings p. 91
• During Trial p. 94
• During Post-Trial Proceedings p. 106
• Distinguishing Non-Criminal from Criminal Proceedings p. 113
• Assertions of the Fifth Amendment Right Against Self-incrimination in Non-Criminal Proceedings p. 117
• During Civil Cases p. 117
• During Administrative Proceedings and Agency Investigations p. 126
• During Legislative Proceedings p. 127
• During Responses to Government Regulatory Demands p. 130
• Chapter 4 The Process for Determining the Validity of the Assertion p. 137
• Procedures for Determining the Validity of Fifth Amendment Assertions in Grand Jury Proceedings p. 139
• Procedures for Determining the Validity of Fifth Amendment Assertions by Witnesses (or Defendants) in a Criminal Trial p. 144
• Procedures for Determining the Validity of Fifth Amendment Assertions in Non-Criminal Proceedings p. 149
• Procedures for Determining the Validity of Fifth Amendment Assertions in Legislative Proceedings p. 150
• Chapter 5 How the Right May be Asserted p. 157
• How Little Can or Should One Say? p. 159
• During Custodial Interrogation p. 159
• During Non-Custodial Questioning and in Other Contexts p. 161
• How Much Can or Should One Say? p. 164
• Chapter 6 Legal Consequences of Asserting the Fifth Amendment in Non-Criminal Cases p. 169
• The Adverse Inference p. 169
• Other Consequences of Asserting the Fifth Amendment in Non-Criminal Proceedings p. 181
• Granting Stays in Civil Cases During Parallel Criminal Proceedings p. 187
• Chapter 7 Stigma and the Fifth Amendment p. 195
• Chapter 8 Waiver and Risk of Waiver p. 199
• General Principles p. 199
• Waiver Is Proceeding-Specific p. 199
• Waiver Must Be Voluntary (or Not?) p. 206
• Waiver Need Not Be Knowing p. 207
• Waiver in Various Contexts p. 215
• Waiver of Miranda Rights p. 215
• Testimonial Waiver in Grand Jury Proceedings p. 219
• Waiver in Criminal Trials p. 221
• Testimonial Waivers in Legislative Proceedings p. 229
• Waiver in Other Non-Criminal Proceedings p. 230
• Waiver in Connection with Production of Documents p. 232
• Chapter 9 Documents and the Fifth Amendment: The Act of Production Privilege p. 235
• The "Foregone Conclusion" Exception to the Act of Production Privilege p. 238
• Application of the Act of Production Privilege to Demands for Documents Made to Third Parties p. 242
• The "Required Records" Exception to the Act of Production Privilege p. 244
• Chapter 10 Immunity p. 251
• Use and Derivate Use Immunity Is Constitutional p. 251
• The Use of Evidence Obtained Through Immunity Granted Pursuant to 18 U.S.C. § 6002 p. 257
• The Use of Documents Obtained Through Immunity Granted Pursuant to 18 U.S.C. § 6002 p. 265
• 18 U.S.C. § 6002 and "Ancillary Proceedings" p. 266
• "Garrity" Immunity p. 267
• Informal Use and Derivative Use or "Letter" Immunity p. 272
• Court Authority to Grant Immunity p. 279
• Chapter 11 The Future of the Fifth Amendment p. 285
• Epilogue p. 289
• Table of Cases p. 293
• Index p. 327