Self Incrimination and the right to privacy in a criminal proceeding.

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The Fifth amendment protects a person against being incriminated by his or her own compelled testimonial communication. This protection is applicable to the states through the due process clause of the Fourteenth Amendment. To be testimonial, a communication must itself, explicitly or implicitly relate to a factual assertion or disclose information that is the expression of the contents of an individual’s mind. Therefore, the privilege against self-incrimination is not violated by compelling a person to appear in a line-up, produce voice exemplars, hand writing samples, fingerprints, shave mustache or beard, or take blood-alcohol or breathalyzer test.

The U.S. Supreme Court said

“the privilege afforded not only extends to answers that would in themselves support a conviction under a criminal statute but like wise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a crime.

But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer…. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.”

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In other words, not only the confession to the commission of a crime is protected under the Fifth Amendment. Also protected are incriminating admissions that, while not sufficient in and of themselves to support a conviction, would provide a link in the chain of evidence needed to prosecute.

Self incrimination and immunity are very much related given that both are protecting the individual who is providing information and/or volunteering an admission to a crime. There are types of immunity that may be granted are transactional immunity and use immunity.

Transactional immunity, a witness may be compelled to testify despite the privilege against self incrimination, but witness is protected from any prosecution for crimes to which his or her compelled testimony relates. Under the use immunity a witness may be compelled to testify despite the privilege against self incrimination, but witness is protected from the use of the compelled testimony and any evidence derived from it. Use immunity would still permit prosecution for related offenses based upon evidence derived from independent sources. A witness’s failure to answer questions or produce evidence within the subject of the investigation as ordered by the court constitutes contempt of court.

“Immunity.” A person who has been a witness in a legal proceeding, and who cannot, except as otherwise provided in this subdivision, be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction matter or thing concerning which he gave evidence therein, possesses “immunity” from any such conviction, penalty or forfeiture. A person who possesses such immunity may nevertheless be convicted of perjury as a result of false testimony in such legal proceeding, and may be convicted of or adjudged in contempt as result of having contumaciously refused to give evidence therein. (Penal Law 50.10[1])

The law of criminal procedure is bound to weigh the intended investigation of the truth against the interest of the person charged with a criminal offense and in protecting his privacy. While the majority of the courts are making an effort to reinforce the protection provided to the accused, there is a tendency of allowing increasingly too much invasion of privacy. Self-incrimination and privacy tend to overlap because enforced self-incrimination will often entail invasion of privacy.

Having immunity doesn’t mean that you can commit perjury. In the case of matter of Altieri v. Holder this, this held to be true. A man posing as Robert Smith had admitted himself to a hospital under a false name in order to avoid paying his bill. Rebecca Altieri had spoken to an investigator with the Westchester Country District Attorney’s office and a Federal Bureau of Investigation agent. She allegedly told them she had seen Mr. Smith at the hospital and he admitted to her that he had given a wrong name. When she was subpoenaed to appear before the grand jury she was given transactional immunity under Criminal Procedure Law 10.40. During her testimony Ms. Altieri denied meeting with the investigators and said she had told them about any conversation with Mr. Smith. Due to the false testimony, the matter was presented to a second grand jury and Ms. Altieri ultimately was charged with misdemeanor perjury in the third degree. She tried to use Matter of Rush v. Mordue (68 NYd 48) to seek writ of prohibit since the man who testified to a grand jury under immunity had previously given a false statement to police and was not prosecuted for perjury. Ms. Altieri was not being prosecuted for her statement to the investigators; rather she was being prosecuted for her later false testimony.

In New York v. Quarles, (467 US 64, 65-65) a woman claiming that she had been raped at gunpoint flagged down a police officer. She told him that the perpetrator fled into a supermarket. The police briefly pursued the suspect through the supermarket before apprehending him. As they were frisking him, the officer discovered that the man was wearing a shoulder holster. The officer asked where the gun was and the suspect directed him to a cardboard carton in the supermarket where he had hidden it. The United States Supreme Court held that, not withstanding the fact that the suspect was in custody, he had not been read his Miranda rights before being questioned. The question about the whereabouts of the gun was permissible because of the concern for public safety. As long as there is an objective made to ask the question in order to protect the public, it does not matter that the officers may also have desired to obtain incriminating evidence. This case presents basic public safety concerns. What would happen if an accomplice or any other criminal got a hold of the gun and an innocent bystander came across it and would be injured?

In the case of New York v. Robles the question presented was if people were allowed to present select portions of videotape at trial in order to prove a defendant’s intoxication. When a defendant has been properly arrested based on probable cause for the crime of driving while intoxicated, the police may ask the defendant to consent to submit to a chemical test for the presence of alcohol in the defendant’s system, and the defendant has no constitutional right to refuse. This is so because a chemical test does not require the defendant to provide evidence of a testimonial or communicative character and therefore does not implicate defendants’ rights against self-implication. Due to New York Vehicle and Traffic Law Section 1141()(f) a defendant who has been arrested for driving while intoxicated will not be forced to take a chemical test for alcohol but will faced certain adverse consequences if he refuses to take such a test. Law requires in substance that a defendant who has been arrested on a charge of drunken driving shall be advised that his (or her) driver’s license will be suspended for refusal to take a chemical test whether or not, the defendant is subsequently found guilty of the criminal charge. If the defendant nevertheless refuses to take the chemical test, the police must immediately prepare a written report of the defendant’s refusal. The defendant Rafael Robles was arrested on or about January 14, 18 and was charged with violations of Penal Law Section 0.0 and Vehicle and Traffic Law Section 11 (). Robles refused to submit himself to a chemical test, so his license was suspended. The video showed that the defendant approached a female undercover officer who was posing as a prostitute and offered her twenty dollars in return for a sexual act. When he was pulled over, Police Officer Rosenberg smelled strong alcohol from the car and appeared to be very intoxicated. They then arrested him and gave him refusal warnings in a pre-recorded Spanish language videotape. Robles was so intoxicated that they decided to stop the refusal warning. As a result, the officer never finished the process, so Robles was not aware that his refusal to take the chemical test would be used against him at trial.


1. Alden, B. (17), “Immunity No Shield to Perjury Charge.

The New York Law Journal. (Page 1, column 5)

. New York v. Robles. (1) 1 NY Lexis 16.

Lexis-Nexis Universe State Case Law. [Reed Elsevier Inc.]

. Annotated Book 11A. Criminal Procedure Law 50.10

(McKinney’s Consolidated Laws of NY 1)

4. Criminal Procedure Law of the State of New York. (1)

Fresh Meadows, NY; Looseleaf Law Publications

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