PRIVILEGE OF SILENCE
Autor Steven M Salkyen Limba Engleză Paperback – 6 dec 2020
Now in its third edition, The Privilege of Silence is designed to serve as a research tool to aid lawyers in thinking about and applying the Fifth Amendment privilege in various contexts and proceedings. It provides a guide for both the civil litigator who may confront the privilege infrequently and the criminal lawyer who seeks to advance a client's interests through creative application of the Fifth Amendment. Most importantly, it organizes the relevant case law so that lawyers may more effective advise and represent their clients.
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Specificații
ISBN-10: 1641055197
Pagini: 370
Dimensiuni: 228 x 153 x 23 mm
Greutate: 0.52 kg
Editura: TRADE SELECT
Notă biografică
Cuprins
Preface vii
About the Author 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 5
Chapter 2: Elements of the Fifth Amendment 13
The Meaning of Self-Incrimination 13
The Meaning of Compulsion 23
General Propositions 23
Private Compulsion vs. Government Compulsion 33
The Meaning of Testimonial Communication 40
Absence of a Fifth Amendment Privilege for Collective Entities 51
The Meaning of ¿Any Criminal Case¿ 62
Chapter 3: Proceedings in Which the Fifth Amendment May
Be Asserted and the Consequences of Remaining Silent 69
Assertions of the Fifth Amendment Right Against Self-
Incrimination in Criminal Proceedings and the
Consequences of Invoking and/or Remaining Silent 72
During Custodial Police Interrogation 72
During Non-Custodial Police Interrogation 91
During Grand Jury Proceedings 93
Procedures for Invoking the Fifth Amendment
in the Grand Jury 94
Absence of a Fifth Amendment Privilege in Response
to Grand Jury Subpoena for Documents That
Incriminate Others 100
Absence of Protection Against Grand Jury Considering
Evidence Previously Obtained in Violation of the
Fifth Amendment 102
Fifth Amendment Rights of the Trial Witness 117
During Post-Trial Proceedings 120
During Probation and Parole 125
Distinguishing Non-Criminal from Criminal Proceedings 130
Assertions of the Fifth Amendment Right Against Self-
Incrimination in Non-Criminal Proceedings and the
Consequences of Invoking and/or Remaining Silent 135
During Civil Cases 135
During Administrative Proceedings and Agency
Investigations 144
During Legislative Proceedings 145
During Responses to Government Reporting Demands 148
Legal Consequences of Asserting the Fifth Amendment
in Non-Criminal Cases 153
The Adverse Inference 153
Other Consequences of Asserting the Fifth Amendment in
Non-Criminal Proceedings 167
Granting Stays in Civil Cases During Parallel Criminal
Proceedings 173
Chapter 4: The Process for Determining the Validity
of the Assertion 181
Procedures for Determining the Validity of Fifth Amendment
Assertions in Grand Jury Proceedings 183
Procedures for Determining the Validity of Fifth Amendment
Assertions by Witnesses in a Criminal Trial 189
Procedures for Determining the Validity of Fifth Amendment
Assertions in Non-Criminal Proceedings 194
Procedures for Determining the Validity of Fifth Amendment
Assertions in Legislative Proceedings 195
Procedures for Determining the Validity of Fifth Amendment
Assertions with Regard to Document Production 200
Chapter 5: How the Right Should Be Asserted 203
How Little Can or Should One Say? 205
How Much Can or Should One Say? 210
Chapter 6: Stigma and the Fifth Amendment 215
Chapter 7: Waiver and Risk of Waiver 219
General Principles 219
Waiver Is Proceeding-Specific 219
Waiver Must Be Voluntary 227
Waiver Need Not Be Knowing 229
Waiver in Various Contexts 237
Waiver of Miranda Rights 237
Testimonial Waiver in Grand Jury Proceedings 241
Waiver by Pleading Guilty 244
Waiver in Criminal Trials 244
Testimonial Waivers in Legislative Proceedings 252
Waiver in Other Non-Criminal Proceedings 254
Waiver in Connection with Production of Documents 256
Chapter 8: Documents and the Fifth Amendment:
The Act of Production Privilege 259
The ¿Foregone Conclusion¿ Exception to the Act
of Production Privilege 262
Application of the Act of Production Privilege
to Demands for Documents Made to Third Parties 270
The ¿Required Records¿ Exception to the Act
of Production Privilege 271
Chapter 9: Immunity 279
Use and Derivative Use Immunity Is Constitutional 279
The Use of Evidence Obtained Through Immunity Granted
Pursuant to 18 U.S.C. § 6002 286
The Use of Documents Obtained Through Immunity
Granted Pursuant to 18 U.S.C. § 6002 293
18 U.S.C. § 6002 and ¿Ancillary Proceedings¿ 295
¿Garrity¿ Immunity 295
Informal Use and Derivative Use or ¿Letter¿ Immunity 301
Court Authority to Grant or Deny Immunity 309
Chapter 10: The Future of the Fifth Amendment 315
Epilogue: A Brief Rejoinder to Justice Thomas 319
Table of Cases 325
Index 363