Fifth Amendment privilege in California

2026Miranda “To safeguard a suspect’s Fifth Amendment privilege against self-incrimination from the ‘inherently compelling pressures’ of custodial interrogation (Miranda, supra, 384 U.S. at p. 467 ), the high court adopted a set of prophylactic measures requiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present prior to any 17 The Perkins agent was between 30 and 50 years old, weighed between 180 and 230 pounds, and was between five feet eight inches and six feet one inch tall. 18 On July 14, 2025, defendant filed a request for judicial notice

2026Miranda “To safeguard a suspect’s Fifth Amendment privilege against self-incrimination from the ‘inherently compelling pressures’ of custodial interrogation (Miranda, supra, 384 U.S. at p. 467 ), the high court adopted a set of prophylactic measures requiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present prior to any 17 The Perkins agent was between 30 and 50 years old, weighed between 180 and 230 pounds, and was between five feet eight inches and six feet one inch tall. 18 On July 14, 2025, defendant filed a request for judicial notice

2017First, the prosecution must prove the voluntariness of a confession beyond a reasonable doubt. ( **245 People v. Jimenez (1978) 21 Cal.3d 595 , 608, 147 Cal.Rptr. 172 , 580 P.2d 672 .) *359 Second, "[a]ny words or conduct which 'reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]' [citation] must be held to amount to an invocation of the Fifth Amendment privilege." ( People v. Burton (1971) 6 Cal.3d 375 , 382, 99 Cal.Rptr. 1 , 491 P.2d 793 ( Burton ).) "To strictly limit the manne

2017First, the prosecution must prove the voluntariness of a confession beyond a reasonable doubt. ( **245 People v. Jimenez (1978) 21 Cal.3d 595 , 608, 147 Cal.Rptr. 172 , 580 P.2d 672 .) *359 Second, "[a]ny words or conduct which 'reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]' [citation] must be held to amount to an invocation of the Fifth Amendment privilege." ( People v. Burton (1971) 6 Cal.3d 375 , 382, 99 Cal.Rptr. 1 , 491 P.2d 793 ( Burton ).) "To strictly limit the manne

2023(Withrow v. Williams, at p. 688; Malloy v. Hogan (1964) 378 U.S. 1, 6 [“the Fifth Amendment’s exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States”].) Thus, before a confession can be used against a defendant, the prosecution has the burden of proving, by a preponderance of the evidence, that it was voluntary.

2016Analysis The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., 5th Amend.; see Malloy v. Hogan (1964) 378 U.S. 1, 6 [ 12 L.Ed.2d 653 , 84 S.Ct. 1489 ].) To safeguard a suspect’s Fifth Amendment privilege against *339 self-incrimination from the “inherently compelling pressures” of custodial interrogation {Miranda, supra, 384 U.S. at p. 467 ), the high court adopted a set of prophylactic measures requiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present

2017First, the prosecution must prove the voluntariness of a confession beyond a reasonable doubt. ( **245 People v. Jimenez (1978) 21 Cal.3d 595 , 608, 147 Cal.Rptr. 172 , 580 P.2d 672 .) *359 Second, "[a]ny words or conduct which 'reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]' [citation] must be held to amount to an invocation of the Fifth Amendment privilege." ( People v. Burton (1971) 6 Cal.3d 375 , 382, 99 Cal.Rptr. 1 , 491 P.2d 793 ( Burton ).) "To strictly limit the manne

2017First, the prosecution must prove the voluntariness of a confession beyond a reasonable doubt. ( **245 People v. Jimenez (1978) 21 Cal.3d 595 , 608, 147 Cal.Rptr. 172 , 580 P.2d 672 .) *359 Second, "[a]ny words or conduct which 'reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]' [citation] must be held to amount to an invocation of the Fifth Amendment privilege." ( People v. Burton (1971) 6 Cal.3d 375 , 382, 99 Cal.Rptr. 1 , 491 P.2d 793 ( Burton ).) "To strictly limit the manne

2026(People v. Orozco (2019) 32 Cal.App.5th 802, 811 (Orozco).) Miranda was based on the Fifth Amendment privilege against self-incrimination, which “has consistently been accorded a liberal construction.” ( Miranda, supra, 384 U.S. 8 at p. 461 .) The exercise of that privilege “will be scrupulously honored,” and “the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ ” (Id. at pp. 460, 479.) “Critically, however, Miranda’s rule has a limit: It only applies when the suspect-defendant was the

2026(People v. Orozco (2019) 32 Cal.App.5th 802, 811 (Orozco).) Miranda was based on the Fifth Amendment privilege against self-incrimination, which “has consistently been accorded a liberal construction.” ( Miranda, supra, 384 U.S. 8 at p. 461 .) The exercise of that privilege “will be scrupulously honored,” and “the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ ” (Id. at pp. 460, 479.) “Critically, however, Miranda’s rule has a limit: It only applies when the suspect-defendant was the

2021If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.” (Berghuis v. Thompkins (2010) 560 U.S. 370 , 387−388.) “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or counsel.” (People v. Stitely (2005) 35 Cal.4th 514, 535 .) “It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights.” (Ibid.) “Faced with an ambiguous or equiv

2021If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.” (Berghuis v. Thompkins (2010) 560 U.S. 370 , 387−388.) “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or counsel.” (People v. Stitely (2005) 35 Cal.4th 514, 535 .) “It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights.” (Ibid.) “Faced with an ambiguous or equiv

2017While cases like Chavez and Maldonado have taken the view that the Fifth Amendment right is violated by the prosecution's use of compelled statements in criminal proceedings, not the compulsion itself, the cases have also recognized a longstanding body of " ' prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause.' " ( Maldonado , supra , 53 Cal.4th at p. 1128 , 140 Cal.Rptr.3d 113 , 274 P.3d 1110 , quoting Chavez , supra , 538 U.S. at pp. 770-771, 123 S.Ct. 1994 (plur. opn. of Thomas, J.).) These rules permit an individual to assert t

2017While cases like Chavez and Maldonado have taken the view that the Fifth Amendment right is violated by the prosecution's use of compelled statements in criminal proceedings, not the compulsion itself, the cases have also recognized a longstanding body of " ' prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause.' " ( Maldonado , supra , 53 Cal.4th at p. 1128 , 140 Cal.Rptr.3d 113 , 274 P.3d 1110 , quoting Chavez , supra , 538 U.S. at pp. 770-771, 123 S.Ct. 1994 (plur. opn. of Thomas, J.).) These rules permit an individual to assert t

2022The most familiar example of this exception “addresses the problem of confessions obtained from suspects in police custody,” a setting “thought to contain ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel [the individual] to speak where [the individual] would not otherwise do so freely.’ ” ( Murphy, supra, 465 U.S. at pp. 429–430, quoting Miranda, supra, 384 U.S. at p. 467 .) “To dissipate ‘the overbearing compulsion . . . caused by isolation of a suspect in police custody,’ [citation], the Miranda Court required the exclusion of incriminati

2022The most familiar example of this exception “addresses the problem of confessions obtained from suspects in police custody,” a setting “thought to contain ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel [the individual] to speak where [the individual] would not otherwise do so freely.’ ” ( Murphy, supra, 465 U.S. at pp. 429–430, quoting Miranda, supra, 384 U.S. at p. 467 .) “To dissipate ‘the overbearing compulsion . . . caused by isolation of a suspect in police custody,’ [citation], the Miranda Court required the exclusion of incriminati

2020(See People v. Badgett (1995) 10 Cal.4th 330, 343 (Badgett) [it is settled that a defendant cannot “object to a violation of another’s Fifth Amendment privilege against self-incrimination”].) The People note that we have recognized a defendant may seek to exclude a third party’s testimony on the ground “that the trial testimony is coerced [citation], and that its admission will deprive [the defendant] of a fair trial.” (Badgett, supra, 10 Cal.4th at p. 344 .) “[T]he primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings . . . .” (I

2020(See People v. Badgett (1995) 10 Cal.4th 330, 343 (Badgett) [it is settled that a defendant cannot “object to a violation of another’s Fifth Amendment privilege against self-incrimination”].) The People note that we have recognized a defendant may seek to exclude a third party’s testimony on the ground “that the trial testimony is coerced [citation], and that its admission will deprive [the defendant] of a fair trial.” (Badgett, supra, 10 Cal.4th at p. 344 .) “[T]he primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings . . . .” (I

2026(Ibid.) Kelly acknowledged that “the tactic of exploiting a suspect’s religious anxieties” or exploiting a parent’s fear that the failure to cooperate with police would result in not seeing his young child for many years, has been “justly condemned.” (People v. Kelly, supra, 51 Cal.3d at p. 953 ; but see Berghuis v. Thompkins, supra, 560 U.S. at p. 386-387 [the Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion; asking whether the defendant prayed to God for forgiveness for shooting the victim did not

2026(Ibid.) Kelly acknowledged that “the tactic of exploiting a suspect’s religious anxieties” or exploiting a parent’s fear that the failure to cooperate with police would result in not seeing his young child for many years, has been “justly condemned.” (People v. Kelly, supra, 51 Cal.3d at p. 953 ; but see Berghuis v. Thompkins, supra, 560 U.S. at p. 386-387 [the Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion; asking whether the defendant prayed to God for forgiveness for shooting the victim did not

2014It cuts down on the privilege by making its assertion costly.” (Griffin, supra, 380 U.S. at p. 614, fn. omitted.) The element of compulsion arises from the fact that allowing adverse comment on silence puts pressure on the defendant to take the witness stand, thereby undermining “the central purpose of the privilege-to protect a defendant from being the unwilling instrument of his or her own condemnation.” (Mitchell v. United States (1999) 526 U.S. 314, 329 [ 143 L.Ed.2d 424 , 119 S.Ct. 1307 ] {Mitchell).) This pressure exists even if “a guilty defendant would choose to remain silent despite t

2014In that case, evidence was admitted at sentencing that the defendant had refused over a period of three years, preceding and following his arrest, to cooperate with the investigation of a criminal conspiracy in which he was a confessed participant. { Roberts, supra, 445 U.S. at pp. 553, 557.) In response to the defendant’s complaint that use of his silence punished him for exercising his Fifth Amendment privilege against self-incrimination, the high court recognized, as we do here, that the privilege “is not self-executing” and “may not be relied upon unless it is invoked in a timely fashion.”

2023Appellant then made clear that he agreed to speak with her. 5 After Waiving His Miranda Rights, Appellant Did Not Invoke His Right to Remain Silent “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence . . . . [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . to

2023Appellant then made clear that he agreed to speak with her. 5 After Waiving His Miranda Rights, Appellant Did Not Invoke His Right to Remain Silent “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence . . . . [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . to

2025Although defense counsel initially moved to exclude defendant’s recorded statement, she subsequently withdrew her 4 “As a prophylactic safeguard to protect a suspect’s Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise a suspect, before any custodial law enforcement questioning, that ‘he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for h

2025Although defense counsel initially moved to exclude defendant’s recorded statement, she subsequently withdrew her 4 “As a prophylactic safeguard to protect a suspect’s Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise a suspect, before any custodial law enforcement questioning, that ‘he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for h

1984Appellant contends that due to the fact that he was a foreigner and had an incomplete grasp of the English language his request to speak with his friends was tantamount to invoking his Fifth Amendment privilege which rendered the admissions made subsequent thereto inadmissible in evidence (People v. Burton (1971) 6 Cal.3d 375 [ 99 Cal.Rptr. 1 , 491 P.2d 793 ]; People v. Randall (1970) 1 Cal.3d 948 [ 83 Cal.Rptr. 658 , 464 P.2d 1 ]; People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 , 40 A.L.R.3d 1323 ]).

1984Appellant contends that due to the fact that he was a foreigner and had an incomplete grasp of the English language his request to speak with his friends was tantamount to invoking his Fifth Amendment privilege which rendered the admissions made subsequent thereto inadmissible in evidence (People v. Burton (1971) 6 Cal.3d 375 [ 99 Cal.Rptr. 1 , 491 P.2d 793 ]; People v. Randall (1970) 1 Cal.3d 948 [ 83 Cal.Rptr. 658 , 464 P.2d 1 ]; People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 , 40 A.L.R.3d 1323 ]).

2026“The Fifth Amendment privilege against self-incrimination protects persons from being compelled by ‘“governmental coercion”’ to serve as witnesses against themselves in ‘“any criminal case.”’” (Myles, supra, 69 Cal.App.5th at p. 705.) A section 1172.6 hearing “‘“is not a trial de novo on all the original charges.”’” (Ibid.) Instead, it is “‘“a postconviction proceeding’”” and an “‘“‘act of lenity’”’” by the Legislature.

2026“The Fifth Amendment privilege against self-incrimination protects persons from being compelled by ‘“governmental coercion”’ to serve as witnesses against themselves in ‘“any criminal case.”’” (Myles, supra, 69 Cal.App.5th at p. 705.) A section 1172.6 hearing “‘“is not a trial de novo on all the original charges.”’” (Ibid.) Instead, it is “‘“a postconviction proceeding’”” and an “‘“‘act of lenity’”’” by the Legislature.

2025(Kastigar v. United States (1972) 406 U.S. 441, 453 [use immunity is sufficient to compel testimony over a claim of Fifth Amendment privilege].) In light of our reversal of the conviction, issues relating to the prosecutor’s conduct in the prior proceedings are moot.

2015Transactional immunity is not constitutionally required.” (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366 .) The United States Supreme Court in Kastigar v. United States (1972) 406 U.S. 441 (Kastigar), held that the scope of immunity granted under an immunity statute must be coextensive with the scope of the Fifth Amendment privilege against self- incrimination to justify supplanting the privilege and compelling a witness to testify.

2022(Sudduth, supra, 65 Cal.2d at p. 546 .) On this score, Schmerber held that the Fifth Amendment did not bar compelled blood testing for a motorist suspected of DUI because blood is physical evidence, and testing it did not compel the motorist to incriminate himself. ( Schmerber, supra, 384 U.S. at pp. 761-765.) 39 v. Wood (2002) 103 Cal.App.4th 803 , 808-809 [same]; Camara v. Municipal Court of San Francisco (1967) 387 U.S. 523, 540 [lessee could “not constitutionally be convicted for refusing to consent” to warrantless inspection by city housing inspectors].) But these cases are not controllin

2019We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v. Gamache (2010) 48 Cal.4th 347 , 385, 106 Cal.Rptr.3d 771 , 227 P.3d 342 ; see also Cunningham , at p. 992, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) The Fifth Amendment does not bar the admission of "[v]olunteered statements of any kind" ( *518 Miranda , supra , 384 U.S. at p. 478 , 86 S.Ct. 1602 ), nor those otherwise not resulting from interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291 , 299-300, 100 S.Ct. 1682 , 64 L.

2017First, the prosecution must prove the voluntariness of a confession beyond a reasonable doubt. ( **245 People v. Jimenez (1978) 21 Cal.3d 595 , 608, 147 Cal.Rptr. 172 , 580 P.2d 672 .) *359 Second, "[a]ny words or conduct which 'reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]' [citation] must be held to amount to an invocation of the Fifth Amendment privilege." ( People v. Burton (1971) 6 Cal.3d 375 , 382, 99 Cal.Rptr. 1 , 491 P.2d 793 ( Burton ).) "To strictly limit the manne

2017First, the prosecution must prove the voluntariness of a confession beyond a reasonable doubt. ( **245 People v. Jimenez (1978) 21 Cal.3d 595 , 608, 147 Cal.Rptr. 172 , 580 P.2d 672 .) *359 Second, "[a]ny words or conduct which 'reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]' [citation] must be held to amount to an invocation of the Fifth Amendment privilege." ( People v. Burton (1971) 6 Cal.3d 375 , 382, 99 Cal.Rptr. 1 , 491 P.2d 793 ( Burton ).) "To strictly limit the manne

2026Applicable law Under the Sixth Amendment, criminal defendants have the right “‘to have compulsory process for obtaining witnesses in his favor.’” (In re Martin (1987) 44 Cal.3d 1, 29 .) But this right does “not entitle the defendant to compel a witness to waive his Fifth Amendment privilege” against self- 11 incrimination (the privilege).3 (People v. Woods (2004) 120 Cal.App.4th 929, 938 .) “‘It is a bedrock principle of American (and California) law . . . that witnesses may not be compelled to incriminate themselves. [T]his privilege “must be accorded liberal construction in favor of the righ

2025(People v. Seijas (2005) 36 Cal.4th 291, 304 .) “On review of a witness’s successfully invoking the Fifth Amendment privilege, we look only to see whether it is 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.’ ” (People v. Capers (2019) 7 Cal.5th 989, 1011 , quoting Hoffman v. United States (1951) 341 U.S. 479, 486-487 ; see also Evid.

2024In Quarles, the United States Supreme Court recognized that “in a situation posing a threat to the public safety,” “the need for answers to questions . . . outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” (Quarles, supra, 467 U.S. at p. 657 .) The public safety exception avoids “plac[ing] officers . . . in the untenable position of having to consider . . . whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible.” (Id. a

2023(Quarles, at pp. 652-653.) The Supreme Court reversed the trial court’s ruling, holding the initial questioning of the suspect did not violate Miranda because “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” (Quarles, supra, 467 U.S. at p. 657 .) The court explained, “So long as the gun was concealed . . . with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it [or

2021(Strickland v. Washington (1984) 466 U.S. 668, 687 ; People v. Gray (2005) 37 Cal.4th 168 , 206-207.) The defendant “bears the burden of establishing constitutionally inadequate assistance of counsel.” (People v. Gray, supra, at p. 207 .) “The Fifth Amendment provides that ‘[n]o person ... shall be compelled in any criminal case to be a witness against himself.’ [Citations.] To safeguard a suspect’s Fifth Amendment privilege against self-incrimination from the ‘inherently compelling pressures’ of custodial interrogation [citation], the high court adopted a set of prophylactic measures requirin

2021(Strickland v. Washington (1984) 466 U.S. 668, 687 ; People v. Gray (2005) 37 Cal.4th 168 , 206-207.) The defendant “bears the burden of establishing constitutionally inadequate assistance of counsel.” (People v. Gray, supra, at p. 207 .) “The Fifth Amendment provides that ‘[n]o person ... shall be compelled in any criminal case to be a witness against himself.’ [Citations.] To safeguard a suspect’s Fifth Amendment privilege against self-incrimination from the ‘inherently compelling pressures’ of custodial interrogation [citation], the high court adopted a set of prophylactic measures requirin

2026(People v. Orozco (2019) 32 Cal.App.5th 802, 811 (Orozco).) Miranda was based on the Fifth Amendment privilege against self-incrimination, which “has consistently been accorded a liberal construction.” ( Miranda, supra, 384 U.S. 8 at p. 461 .) The exercise of that privilege “will be scrupulously honored,” and “the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ ” (Id. at pp. 460, 479.) “Critically, however, Miranda’s rule has a limit: It only applies when the suspect-defendant was the

2026(People v. Orozco (2019) 32 Cal.App.5th 802, 811 (Orozco).) Miranda was based on the Fifth Amendment privilege against self-incrimination, which “has consistently been accorded a liberal construction.” ( Miranda, supra, 384 U.S. 8 at p. 461 .) The exercise of that privilege “will be scrupulously honored,” and “the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ ” (Id. at pp. 460, 479.) “Critically, however, Miranda’s rule has a limit: It only applies when the suspect-defendant was the

2024“The Fifth Amendment provides, in pertinent part, that no person ‘shall be compelled in any criminal case to be a witness against himself [or herself].’” (Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1127 .) This privilege against self-incrimination “is a fundamental trial right of criminal defendants,” and “a constitutional violation occurs only at trial.” (U.S. v. Verdugo-Urquidez (1990) 494 U.S. 259, 264 .) “As both [the California Supreme Court] and the United States Supreme Court have made clear, the Fifth Amendment does not directly prohibit the government from eliciting self-incr

2024“The Fifth Amendment provides, in pertinent part, that no person ‘shall be compelled in any criminal case to be a witness against himself [or herself].’” (Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1127 .) This privilege against self-incrimination “is a fundamental trial right of criminal defendants,” and “a constitutional violation occurs only at trial.” (U.S. v. Verdugo-Urquidez (1990) 494 U.S. 259, 264 .) “As both [the California Supreme Court] and the United States Supreme Court have made clear, the Fifth Amendment does not directly prohibit the government from eliciting self-incr

2021As the court in Brown explained, there was no Fifth Amendment violation because the privilege “is not self-executing; rather it must be claimed.” (Brown, supra, 101 Cal.App.4th at p. 320 .) “[U]nless [the defendant] specially invokes the privilege, shows he faces a realistic threat of self-incrimination and nevertheless is made to answer the question or questions, no violation of his privilege against self-incrimination is suffered.” (Ibid.) Here, defendant did not clear even the first hurdle, let, alone, make a showing as to the additional two requirements.

2017But as explained earlier, the information elicited under compulsion by the containment team in interviews and by polygraph examinations may not be used against the probationer in a criminal prosecution and therefore does not offend the Fifth Amendment. ( Brown v. Superior Court (2002) 101 Cal.App.4th 313 , 320, 124 Cal.Rptr.2d 43 ["if the questions put to the probationer [during the polygraph examination] are relevant to his probationary status and pose no realistic threat of incrimination in a separate criminal proceeding, the Fifth Amendment privilege would not be available and the probation

2023Appellant then made clear that he agreed to speak with her. 5 After Waiving His Miranda Rights, Appellant Did Not Invoke His Right to Remain Silent “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence . . . . [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . to

2023Appellant then made clear that he agreed to speak with her. 5 After Waiving His Miranda Rights, Appellant Did Not Invoke His Right to Remain Silent “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence . . . . [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . to

2025(People v. Seijas (2005) 36 Cal.4th 291, 304 .) “On review of a witness’s successfully invoking the Fifth Amendment privilege, we look only to see whether it is 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.’ ” (People v. Capers (2019) 7 Cal.5th 989, 1011 , quoting Hoffman v. United States (1951) 341 U.S. 479, 486-487 ; see also Evid.

2025(People v. Seijas (2005) 36 Cal.4th 291, 304 .) “On review of a witness’s successfully invoking the Fifth Amendment privilege, we look only to see whether it is 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.’ ” (People v. Capers (2019) 7 Cal.5th 989, 1011 , quoting Hoffman v. United States (1951) 341 U.S. 479, 486-487 ; see also Evid.

2026On July 1, 2022, Serrano sent a message to a person named Vanessa: “Hey girl blacky wanted me to ask u if u can bring the Honda he left parked outside ur trailer and his toy to my house I’m a take care of his bail.” 7 DISCUSSION “A defendant lacks standing to complain of the violation of a third party’s Fifth Amendment privilege against self-incrimination.” (People v. Jenkins (2000) 22 Cal.4th 900, 965 .) “A defendant may assert a violation of his or her own right to due process of the law and a fair trial based upon third party witness coercion, however, if the defendant can establish that tr

2026On July 1, 2022, Serrano sent a message to a person named Vanessa: “Hey girl blacky wanted me to ask u if u can bring the Honda he left parked outside ur trailer and his toy to my house I’m a take care of his bail.” 7 DISCUSSION “A defendant lacks standing to complain of the violation of a third party’s Fifth Amendment privilege against self-incrimination.” (People v. Jenkins (2000) 22 Cal.4th 900, 965 .) “A defendant may assert a violation of his or her own right to due process of the law and a fair trial based upon third party witness coercion, however, if the defendant can establish that tr

2025Legal Principles “A criminal defendant has the right to testify at trial, ‘a right that is the mirror image of the privilege against compelled self-incrimination and accordingly is of equal dignity.’ (People v. Barnum (2003) 29 Cal.4th 1210, 1223 ; see People v. Nakahara (2003) 30 Cal.4th 705, 717 .) ‘The defendant may exercise the right to testify over the objection of, and contrary to the advice of, defense counsel.’” (People v. Duong (2020) 10 Cal.5th 36 , 55, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1332 (Bradford).) “Absent an express conflict, ‘“a trial judge may safely assume

2024It necessarily follows that a trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising [his or her] Fifth Amendment privilege against self-incrimination and is abiding by [defense] counsel’s trial strategy.” (People v. Mosqueda (1970) 5 Cal.App.3d 540, 545 (Mosqueda); accord, People v. Enraca (2012) 53 Cal.4th 735 , 762-763 (Enraca) [quoting Mosqueda].) Thus, our high court has repeatedly held that a trial court is not required to “obtain an affirmative waiver on the record whenever a defendant fails to testify at trial.” (People v.