BLOG BULLETS:   The Fifth Amendment doesn’t allow a person to refuse to produce incriminating statements or documents that already exist. But there is a Fifth Amendment production for the “act of production,” which may additionally incriminate the person by establishing the existence of the documents, establishing possession of the documents, authenticating the documents, or […]

BLOG BULLETS: Think about possible remedies if a witness claims the privilege against self-incrimination as to only some questions. You can strike the witness’s entire testimony if the claim of privilege frustrates cross examination, if the claim of privilege “mutilates the truth,” and/or if the questions the witness wouldn’t answer pertain to matters directly affecting […]

BLOG BULLETS:   The Supreme Court has now held – in Descamps v. United States – that the modified categorical approach can be applied only to divisible statutes, i.e., statutes that expressly list alternative ways of committing a crime. Descamps also provides guidance about what documents can be used and how they can be used; […]

BLOG BULLETS:   On the good side, the Harris case saying Apprendi doesn’t apply to facts that increase only mandatory minimums is overruled and Apprendi now applies equally to those facts. On the bad side, the Supreme Court held that a person has to expressly invoke the privilege against self-incrimination and mere silence in response […]