Question 1

What is the privilege against self-incrimination in Florida?

Accepted Answer

The privilege against self-incrimination (the "Fifth Amendment right") protects a person from being compelled to give testimony that could be used against them in a criminal case. Sources: the 5th Amendment to the U.S. Constitution, and Article I, Section 9 of the Florida Constitution. The privilege: applies to criminal proceedings (the defendant cannot be forced to testify at trial), extends to civil proceedings (a witness can invoke the privilege if the testimony could expose them to criminal liability), and is personal (only the individual can invoke it, not a corporation or entity).

Question 2

How is the privilege invoked in Florida?

Accepted Answer

Invocation: in criminal cases: the defendant simply chooses not to testify (the prosecution cannot comment on the defendant’s silence; Section 90.4015), the jury is instructed not to draw any adverse inference from the defendant’s silence. In civil cases: a witness invokes the privilege on a question-by-question basis (the witness cannot refuse to testify entirely; they must answer questions that do not implicate the privilege), and the court may draw an adverse inference from the invocation (unlike criminal cases, Florida civil courts may allow the fact-finder to consider the invocation of the privilege as evidence).

Question 3

What are the limitations of the privilege in Florida?

Accepted Answer

Limitations: the privilege does not apply to: physical evidence (fingerprints, DNA, blood samples), documents (the privilege protects against compelled testimony, not pre-existing documents; however, the act of producing documents may be privileged), and identification procedures (lineups, voice identification). The privilege can be overcome by: a grant of immunity (the prosecution can compel testimony by granting immunity from prosecution based on the testimony; Section 914.04), and waiver (the defendant waives the privilege by: voluntarily testifying, making statements to law enforcement after receiving Miranda warnings, or taking the stand at trial).

Privilege Against Self Incrimination Fifth

Privilege Against Self-Incrimination in Florida

Scope

Criminal vs. Civil

Limitations

Related Terms

Barnes Walker Criminal Defense

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