Obscure Crim Pro MBE Question Forum

[Nightcrawler]

The question is:

A state grand jury investigating a murder learned that the key suspect might have kept a diary. The grand jury issued a subpoena duces tecum
requiring the suspect to produce any diary. The subpoena made clear that the grand jury was seeking only the diary and not any testimony from the
suspect. The suspect refused to produce the diary, citing the privilege against self-incrimination.
Under what circumstances, if any, may the grand jury compel production of the diary over the suspect's assertion of his Fifth Amendment privilege?

A: It may compel production without granting immunity because the suspect was not compelled to write a diary.
B: It may compel production only if the suspect is granted use and derivative use immunity from the act of production.
C: It may compel production only if the suspect is granted transactional immunity.
D: It may not compel production of a private diary under any circumstances.

[+] Spoiler

Answer: B. I definitely chose A because the diary is not compelled evidence so why should the 5th apply?

This is Adaptibar's most useless explanation. It just goes on explaining what immunity is but doesn't say why it needs to be granted. I don't understand why!

B is correct. The Fifth Amendment privilege against self-incrimination protects only testimonial or communicative evidence, and not real or physical
evidence. Therefore, it protects acts of production that would have testimonial significance by authenticating documents. Thus, A is incorrect.
However, a criminal defendant may be compelled to produce documents that have testimonial significance if immunity is granted to the defendant.
There are two kinds of immunity that may be granted. The broader form of immunity is "transactional immunity." Transactional immunity completely
protects the witness from future prosecution for crimes related to his or her testimony. "Use and derivative use" immunity is narrower--it prevents
the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. However, should the
prosecutor acquire evidence substantiating the supposed crime--independently of the witness's testimony--the witness may then be prosecuted for
the same. Here, B is correct because use and derivative use immunity sufficiently protects the constitutional privilege against self-incrimination in
this situation. Thus, C is incorrect. The prosecution does not need to grant the suspect transactional immunity--use and derivative use immunity
sufficiently protects the constitutional privilege against self-incrimination.
D is incorrect. The suspect's privilege against self-incrimination may be overcome if the suspect is granted use and derivative use immunity.

[dabigchina]

The question is:

A state grand jury investigating a murder learned that the key suspect might have kept a diary. The grand jury issued a subpoena duces tecum
requiring the suspect to produce any diary. The subpoena made clear that the grand jury was seeking only the diary and not any testimony from the
suspect. The suspect refused to produce the diary, citing the privilege against self-incrimination.
Under what circumstances, if any, may the grand jury compel production of the diary over the suspect's assertion of his Fifth Amendment privilege?

A: It may compel production without granting immunity because the suspect was not compelled to write a diary.
B: It may compel production only if the suspect is granted use and derivative use immunity from the act of production.
C: It may compel production only if the suspect is granted transactional immunity.
D: It may not compel production of a private diary under any circumstances.

[+] Spoiler

Answer: B. I definitely chose A because the diary is not compelled evidence so why should the 5th apply?

This is Adaptibar's most useless explanation. It just goes on explaining what immunity is but doesn't say why it needs to be granted. I don't understand why!

B is correct. The Fifth Amendment privilege against self-incrimination protects only testimonial or communicative evidence, and not real or physical
evidence. Therefore, it protects acts of production that would have testimonial significance by authenticating documents. Thus, A is incorrect.
However, a criminal defendant may be compelled to produce documents that have testimonial significance if immunity is granted to the defendant.
There are two kinds of immunity that may be granted. The broader form of immunity is "transactional immunity." Transactional immunity completely
protects the witness from future prosecution for crimes related to his or her testimony. "Use and derivative use" immunity is narrower--it prevents
the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. However, should the
prosecutor acquire evidence substantiating the supposed crime--independently of the witness's testimony--the witness may then be prosecuted for
the same. Here, B is correct because use and derivative use immunity sufficiently protects the constitutional privilege against self-incrimination in
this situation. Thus, C is incorrect. The prosecution does not need to grant the suspect transactional immunity--use and derivative use immunity
sufficiently protects the constitutional privilege against self-incrimination.
D is incorrect. The suspect's privilege against self-incrimination may be overcome if the suspect is granted use and derivative use immunity.

Diaries are considered testimonial. Therefore, issuing a subpeona on a diary is treated as equivalent to forcing someone to testify in contravention of their 5th amendment right against self incrimination. Suspects don't have 5th amendment privilege where derivative use immunity is granted.

[Findedeux]

Lots of questions are obscure.

They almost all come directly from the outline though.

[Wild Card]

I would have chosen A as well, and I'm not satisfied with the explanations that the posters above have offered.

[FinallyPassedTheBar]

According to what I know about this issue of diaries, it seems like the correct answer should be A.

There was a DC appeals court case in the 1990's, where the prosecution tried to enter the diary of a US senator when prosecuting the Senator. I think his name was Packwood. The senator argued 5th Amendment. The appeals court rejected that argument, and said the diary could be entered into evidence even when the prosecution cannot compel defendant's testimony.

[RCSOB657]

Once you give effective testimonial immunity to a person they no longer have 5th amendment protection and can be compelled to testify in criminal court proceedings. That should have been covered in your crim pro or related crim class.

[jrc223]

Once you give effective testimonial immunity to a person they no longer have 5th amendment protection and can be compelled to testify in criminal court proceedings. That should have been covered in your crim pro or related crim class.

The issue is that answer choice (b) says that the diary could be compelled only through the grant of use/derivative use immunity. I don't think anyone is disputing that testimonial immunity strips a person of his right to invoke the Fifth Amendment. The issue is whether there are any other circumstances under which the diary could be compelled. Some of us thought that there were other such circumstances because a diary ostensibly isn't testimonial in nature, and therefore would not come within the sweep of the Fifth Amendment. If that were true, choice (a) would be correct.

[RCSOB657]

Once you give effective testimonial immunity to a person they no longer have 5th amendment protection and can be compelled to testify in criminal court proceedings. That should have been covered in your crim pro or related crim class.

The issue is that answer choice (b) says that the diary could be compelled only through the grant of use/derivative use immunity. I don't think anyone is disputing that testimonial immunity strips a person of his right to invoke the Fifth Amendment. The issue is whether there are any other circumstances under which the diary could be compelled. Some of us thought that there were other such circumstances because a diary ostensibly isn't testimonial in nature, and therefore would not come within the sweep of the Fifth Amendment. If that were true, choice (a) would be correct.

You mean because it's physical evidence and therefore shouldn't get protection? If it was found search incident to arrest or in a warrant, it might come in as normal physical evidence. However, the grand jury here did not have it in possession and was seeking for it to be produced. Here, it is trying to compel production of that diary. Generally, the government may not compel production of a diary. The contents of a diary are similar to oral testimony, and as such are considered testimonial in nature. However, the government may not compel production of documents that are similarly testimonial in nature. See, e.g., Schmerber v. California, 384 U.S. 757 (1966). Except, when given immunity, then that same bypass for a person's testimony would work for the diary. Thus B is correct.

It's not a great question though, I agree. I wonder if it's NCBE or company written?

[Findedeux]

I think it's the "only if" language that is misleading.

If C isn't the correct answer because Use immunity would suffice then the same logic could apply to eliminating B, in that both are different types of immunity. Sure, they are different types solely based on the extent of immunity provided, but whether someone got use or blanket immunity there 5th Am privilege would be negated.

[RCSOB657]

Well remember, MBE questions are closed universe. Sometimes it's counter-intuitive. I get caught often enough that I try to pay attention to what's actually being asked....if I can even figure that out. The question choices here don't point to 'provide a gotcha' exception. So why fight it? With the facts given, the diary is not yet physical evidence in the government's possession. A dairy is generally testimonial according to SCOTUS, unless it's already physical evidence. Just answer the question with those two facts.

[siriuslysaucy422]

I had a similar question pop up on my MBEs. The subject was covered in my bar prep's outline (One-Timers).

The explanation provided was really good.

The rationale was that it was the act of producing the diary that violates the 5th Amendment right against self-incrimination because by producing the diary the D is providing factual assertions, which amount to a testimonial communication.

The diary itself is not violation of the 5th Amendment because D was not compelled to write in it. It's the production of the diary that acts as testimonial communication and the only way to avoid violating D's 5th Amendment is to grant them use immunity.

Hope that helps.

[Nightcrawler]

I had a similar question pop up on my MBEs. The subject was covered in my bar prep's outline (One-Timers).

The explanation provided was really good.

The rationale was that it was the act of producing the diary that violates the 5th Amendment right against self-incrimination because by producing the diary the D is providing factual assertions, which amount to a testimonial communication.

The diary itself is not violation of the 5th Amendment because D was not compelled to write in it. It's the production of the diary that acts as testimonial communication and the only way to avoid violating D's 5th Amendment is to grant them use immunity.

Hope that helps.

I think that solves all the doubts of this post. Wow, some freaking nuance right there...

[Krissynateylee]

The question is:

A state grand jury investigating a murder learned that the key suspect might have kept a diary. The grand jury issued a subpoena duces tecum
requiring the suspect to produce any diary. The subpoena made clear that the grand jury was seeking only the diary and not any testimony from the
suspect. The suspect refused to produce the diary, citing the privilege against self-incrimination.
Under what circumstances, if any, may the grand jury compel production of the diary over the suspect's assertion of his Fifth Amendment privilege?

A: It may compel production without granting immunity because the suspect was not compelled to write a diary.
B: It may compel production only if the suspect is granted use and derivative use immunity from the act of production.
C: It may compel production only if the suspect is granted transactional immunity.
D: It may not compel production of a private diary under any circumstances.

[+] Spoiler

Answer: B. I definitely chose A because the diary is not compelled evidence so why should the 5th apply?

This is Adaptibar's most useless explanation. It just goes on explaining what immunity is but doesn't say why it needs to be granted. I don't understand why!

B is correct. The Fifth Amendment privilege against self-incrimination protects only testimonial or communicative evidence, and not real or physical
evidence. Therefore, it protects acts of production that would have testimonial significance by authenticating documents. Thus, A is incorrect.
However, a criminal defendant may be compelled to produce documents that have testimonial significance if immunity is granted to the defendant.
There are two kinds of immunity that may be granted. The broader form of immunity is "transactional immunity." Transactional immunity completely
protects the witness from future prosecution for crimes related to his or her testimony. "Use and derivative use" immunity is narrower--it prevents
the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. However, should the
prosecutor acquire evidence substantiating the supposed crime--independently of the witness's testimony--the witness may then be prosecuted for
the same. Here, B is correct because use and derivative use immunity sufficiently protects the constitutional privilege against self-incrimination in
this situation. Thus, C is incorrect. The prosecution does not need to grant the suspect transactional immunity--use and derivative use immunity
sufficiently protects the constitutional privilege against self-incrimination.
D is incorrect. The suspect's privilege against self-incrimination may be overcome if the suspect is granted use and derivative use immunity.

"The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has, since 1976, applied the so-called “act-of-production doctrine.” Under this doctrine, a person can invoke his Fifth Amendment rights against the production of documents only where the very act of producing the documents is incriminating in itself..."
"Under the Act of Production Doctrine, the act of an individual in producing documents or materials (e.g., in response to a subpoena) may have a "testimonial aspect" for purposes of the individual's right to assert the Fifth Amendment privilege against self-incrimination to the extent that the individual's act of production provides information not already in the hands of law enforcement personnel about the (1) existence; (2) custody; or (3) authenticity, of the documents or materials produced." ..."