Q: Impact of federal pardon on 5th amendment rights in Colorado.
If a person is charged with a federal crime and then accepts a presidential pardon, do they give up their 5th amendment rights? Specifically, can they be forced to talk about the crime, even if they could be tried by the state for the same crime like murder? I am interested in understanding how a state would handle such a situation, especially with current laws.
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A:
When you accept a presidential pardon for a federal crime, your situation becomes complex regarding Fifth Amendment protections. The Supreme Court established in Burdick v. United States that accepting a pardon might waive your right against self-incrimination for that specific federal offense—essentially, you can't refuse to testify about something for which you no longer face federal prosecution risk.
However, under our dual sovereignty system, both federal and state governments can prosecute the same conduct independently. This means that even with a federal pardon, you remain vulnerable to state prosecution for the same underlying actions. The Supreme Court addressed this in Murphy v. Waterfront Commission, holding that testimony compelled in one jurisdiction cannot be used against you in another.
Therefore, if you've received a federal pardon but could still face Colorado state charges for the same conduct (like murder), you should retain your Fifth Amendment right to refuse testimony that might incriminate you in that potential state case. Courts generally recognize this continuing risk of prosecution as sufficient grounds to maintain your constitutional protection, ensuring you cannot be forced into providing evidence that might later be used against you at the state level.
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