The Top Five: The Privilege Against Self-Incrimination

We're just a few weeks away from the July exam. Here are five things to know going into the exam about the privilege against self-incrimination:

(1): A person may assert the privilege against self incrimination in any proceeding in which an answer to a question might tend to incriminate him. Any answer choice which limits the privilege to criminal cases is incorrect.

(2): Though the privilege can be waived, it is not waived merely by taking the witness stand. The privilege, however, must be claimed in a civil proceeding to prevent the privilege from being waived in a later criminal prosecution.

(3): The privilege may only be claimed by natural persons. An answer choice on the exam that purports to allow the privilege for corporations or partnerships is incorrect.

(4): Only a criminal defendant can use the privilege to avoid taking the witness stand. For all others, the privilege does not permit a person to avoid taking the stand; instead, the person must take the stand, listen to the question, and then invoke the privilege.

(5): This privilege only applies to testimonial or communicative evidence rather than real or physical evidence. In other words, one cannot claim the privilege against self-incrimination to avoid producing documents (as part of discovery) that might tend to incriminate, as such documents are not considered to be testimonial, and are therefore not covered by the privilege.