The Privilege of Silence: Fifth Amendment Protections Against Self Incrimination

by Steven M. Salky, Paul B., Jr. Hynes Jr.

Overview

The U.S. Constitution provides that "no person shall be compelled in any criminal case to be a witness against himself." While this portion of the Fifth Amendment contains only fifteen words, its application can be deceptively complex. Using the Fifth Amendment right against self-incrimination is dependent on the factual setting in which the privilege is asserted, with the values served often balanced against the competing interests at stake.

This book explains the contours of the Fifth Amendment privilege against self-incrimination in practice, providing a guide for both the civil litigator and the criminal lawyer. The Privilege of Silence organizes the relevant case law so that lawyers may advise and represent their clients by focusing on the practical aspects of Fifth Amendment assertions in all proceedings.

Product Details

ISBN-13:	9781627225779
Publisher:	American Bar Association
Publication date:	04/16/2015
Edition description:	2nd Edition
Pages:	343
Product dimensions:	5.90(w) x 9.00(h) x 0.70(d)

About the Author

Steven M. Salky, a partner at Zuckerman Spaeder, LLP, represents individuals in white collar criminal cases, regulatory agency investigations, and civil litigation.

Paul B. Hynes Jr. focuses his practice on complex civil and criminal tax matters. He is at Zuckerman Spaeder in Washington, D.C.

Table of Contents

Preface vii

About the Authors ix

Introduction xi

Chapter 1 The Purpose and Scope of the Fifth Amendment Right Against Compulsory Self-incrimination 1

A Very Brief History of the Fifth Amendment 1

Values Served by the Fifth Amendment 4

Chapter 2 Elements of the Fifth Amendment 11

The Meaning of Self-incrimination 11

The Meaning of Compulsion 22

General Propositions 22

Private Compulsion vs. Government Compulsion 30

The Meaning of Testimonial Communication 36

Absence of a Fifth Amendment Privilege for Collective Entities 45

Chapter 3 Proceedings in Which the Fifth Amendment May Be Asserted 57

Assertions of the Fifth Amendment Right Against Self-incrimination in Criminal Proceedings 61

During Custodial Police Interrogation 61

During Non-Custodial Police Interrogation 78

During Grand Jury Proceedings 81

During Pretrial Proceedings 91

During Trial 94

During Post-Trial Proceedings 106

Distinguishing Non-Criminal from Criminal Proceedings 113

Assertions of the Fifth Amendment Right Against Self-incrimination in Non-Criminal Proceedings 117

During Civil Cases 117

During Administrative Proceedings and Agency Investigations 126

During Legislative Proceedings 127

During Responses to Government Regulatory Demands 130

Chapter 4 The Process for Determining the Validity of the Assertion 137

Procedures for Determining the Validity of Fifth Amendment Assertions in Grand Jury Proceedings 139

Procedures for Determining the Validity of Fifth Amendment Assertions by Witnesses (or Defendants) in a Criminal Trial 144

Procedures for Determining the Validity of Fifth Amendment Assertions in Non-Criminal Proceedings 149

Procedures for Determining the Validity of Fifth Amendment Assertions in Legislative Proceedings 150

Chapter 5 How the Right May be Asserted 157

How Little Can or Should One Say? 159

During Custodial Interrogation 159

During Non-Custodial Questioning and in Other Contexts 161

How Much Can or Should One Say? 164

Chapter 6 Legal Consequences of Asserting the Fifth Amendment in Non-Criminal Cases 169

The Adverse Inference 169

Other Consequences of Asserting the Fifth Amendment in Non-Criminal Proceedings 181

Granting Stays in Civil Cases During Parallel Criminal Proceedings 187

Chapter 7 Stigma and the Fifth Amendment 195

Chapter 8 Waiver and Risk of Waiver 199

General Principles 199

Waiver Is Proceeding-Specific 199

Waiver Must Be Voluntary (or Not?) 206

Waiver Need Not Be Knowing 207

Waiver in Various Contexts 215

Waiver of Miranda Rights 215

Testimonial Waiver in Grand Jury Proceedings 219

Waiver in Criminal Trials 221

Testimonial Waivers in Legislative Proceedings 229

Waiver in Other Non-Criminal Proceedings 230

Waiver in Connection with Production of Documents 232

Chapter 9 Documents and the Fifth Amendment: The Act of Production Privilege 235

The "Foregone Conclusion" Exception to the Act of Production Privilege 238

Application of the Act of Production Privilege to Demands for Documents Made to Third Parties 242

The "Required Records" Exception to the Act of Production Privilege 244

Chapter 10 Immunity 251

Use and Derivate Use Immunity Is Constitutional 251

The Use of Evidence Obtained Through Immunity Granted Pursuant to 18 U.S.C. § 6002 257

The Use of Documents Obtained Through Immunity Granted Pursuant to 18 U.S.C. § 6002 265

18 U.S.C. § 6002 and "Ancillary Proceedings" 266

"Garrity" Immunity 267

Informal Use and Derivative Use or "Letter" Immunity 272

Court Authority to Grant Immunity 279

Chapter 11 The Future of the Fifth Amendment 285

Epilogue 289

Table of Cases 293

Index 327

Editorial Reviews

An extremely thoughtful exploration of the Fifth Amendment privilege against self-incrimination and a must-read for criminal defense lawyers. For anyone seeking to understand one of our foundational constitutional principles, Salky and Hynes have developed an essential resource.

Lanny A. Breuer

Steve Salky and Paul Hynes's The Privilege of Silence is an exceptional compilation and incisive analysis of the complex, inconsistent body of case law that has developed around the Fifth Amendment. Their book is an indispensable tool for all criminal defense practitioners.

Henry W. Asbill

The Privilege of Silence is both an invaluable reference book and a readable survey of the law of self-incrimination. It's the first place I'll turn when issues in this area arise in my practice.

Arthur B. Spitzer

The Privilege of Silence is an essential resource for practicing attorneys, law professors, law students, and anyone interested in learning about the Fifth Amendment. Accessible and well-written, this book provides the latest cases and an excellent explanation of every aspect of this complicated area of the law.

Angela J. Davis