What constitutes a violation of a person’s 5th Amendment rights?

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What constitutes a violation of a person’s 5th Amendment rights?

If a person pleads the 5th Amendment, is it against that right for them to be court ordered to a psychiatrist and then have any information that they gave (spoken/written) to the psychiatrist used against them in court? Also, is it violating the person’s 5th Amendment right if that person refuses to write something on paper to be admitted into evidence (for comparativewriting) and the court orders this person to do so anyway? If either (or both) of these are against this person’s 5th Amendment right (and I think they are), what exactly can be done to fight it?

Asked on April 4, 2011 under Criminal Law, Arizona

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

1) A psychiatric/psychological review is not a violation of the 5th Amendment. If the person states something to the psychologist, the psychologist may--subject to any professional ethics--be able to repeat it, though it might also be excludable based on hearsay evidence rules. But more generally: they can make you be seen by a psychiatrist; the psychiatrist can evaluate you based on what you say, do, your demeanor, etc.; but they can't make you say anything in particular to the psychiatrist if you don't want to. So even if ordered to see the psychiatrist, you can stay silent either generally or as to specifici matters.

2) Providing a handwriting sample is not a violation of the 5th Amendment. The 5th Amendment is about statements that incriminate; a handwriting sample is considered akin to physical evidence, like a blood or DNA sample. The court needs to order it the proper way, but  it's allowed.


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