Alternatives Videotaping, ban custodial interrogation, solution require City of Riverside – magistrate before 48hrs or exclude (See McNabb/Mallory) Have the magistrate conduct the questioning on threat of contempt Cases Generally – (1807) of Aaron Burr refuses to testify as to whether he prepared a document Δ Government argued testimony could be compelled so long as the testimony itself is insufficient to convict Δ Holding: Witness must judge for himself whether to answer can’t be compelled – (1964) Murphy v. Waterfront Commission of New York Harbor Policies that underlie privilege Trilemma of self-accusation, perjury or contempt unwilling to subject – Δ Preference for accusatorial over inquisitorial system Fear of inhumane treatment and abuses Putting government to its proof Government should leave people alone until – good cause is shown for disturbing them, and requiring the government to shoulder the load in its contest against Δ Individual right to privacy Distrust of self-deprecatory statements While privilege shelters some guilty, it protects many innocent (1966) Schmerber v. California convicted of DUI, officer instructed doctor at hospital after accident to take Δ blood and measure BAL had refused on advice of counsel, but compelled – Δ Holding 6th Am. is not violated when lawyer erroneous advice 4th Am.: This is a search, on PC, no warrant exigency Subject to reasonable means and procedure doctor in hospital – NOTE: Blood test is not exigency, look at TOTC (McNeely) per se 5th Am. argument that is compelled to bear witness against himself Δ 5th Am. only protects testimonial/communicative evidence, not demonstrative/physical evidence E.g. can compel finger print, photo, try on clothing, say something cannot compel lie detector (response to interrogation) Cases Immunity Statutes – (1892) Counselman v. Hitchcock Government argues immunity” is sufficient to compel testimony “use Testimony itself can’t be used in but derivative evidence is allowed Holding: Use immunity is insufficient to compel testimony No protection from police using testimony to drum up leads, 5th Am. applies to all criminal proceedings (including indictment) (1896) v. Walker Holding: Transaction immunity satisfies the demands of the 5th Am. Testimony operates as a complete pardon for the offense to which it relates
Alternatives Videotaping, ban custodial interrogation, City of Riverside solution – require magistrate before 48hrs or exclude (See McNabb/Mallory) Have the magistrate conduct the questioning on threat of contempt Cases – Generally of Aaron Burr (1807) Δ refuses to testify as to whether he prepared a document Government argued testimony could be compelled so long as the testimony itself is insufficient to convict Δ Holding: Witness must judge for himself whether to answer – can’t be compelled Murphy v. Waterfront Commission of New York Harbor (1964) Policies that underlie privilege Trilemma of self-accusation, perjury or contempt – unwilling to subject Δ Preference for accusatorial over inquisitorial system Fear of inhumane treatment and abuses Putting government to its proof – Government should leave people alone until good cause is shown for disturbing them, and requiring the government to shoulder the load in its contest against Δ Individual right to privacy Distrust of self-deprecatory statements While privilege shelters some guilty, it protects many innocent Schmerber v. California (1966) Δ convicted of DUI, officer instructed doctor at hospital after accident to take blood and measure BAL – Δ had refused on advice of counsel, but compelled Holding 6th Am. is not violated when lawyer erroneous advice 4th Am.: This is a search, on PC, no warrant exigency Subject to reasonable means and procedure – doctor in hospital NOTE: Blood test is not per se exigency, look at TOTC (McNeely) 5th Am. argument that Δ is compelled to bear witness against himself 5th Am. only protects testimonial/communicative evidence, not demonstrative/physical evidence E.g. can compel finger print, photo, try on clothing, say something cannot compel lie detector (response to interrogation) Cases – Immunity Statutes Counselman v. Hitchcock (1892) Government argues “use immunity” is sufficient to compel testimony Testimony itself can’t be used in but derivative evidence is allowed Holding: Use immunity is insufficient to compel testimony No protection from police using testimony to drum up leads, 5th Am. applies to all criminal proceedings (including indictment) v. Walker (1896) Holding: Transaction immunity satisfies the demands of the 5th Am. Testimony operates as a complete pardon for the offense to which it relates
CrimPro%20Friedman%20Spring%202013.docx