The Supreme Court has made it clear that a person's Fifth Amendment right to remain silent is preserved at sentencing and on direct appeal. See Mitchell v. United States, 526 U.S. 314, 326, 119 S.Ct. 1307, 1314, 143 L.Ed.2d 424 (1999). The Court tangentially addressed the problems of defining when the privilege against self-incrimination ends. In Mitchell, the Court rejected the claim that the privilege did not exist in the context of sentencing and stated that it only ends when there can be no further incrimination or [i]f no adverse consequences can be visited upon the convicted person by reason of further testimony. Id. at 325-26, 119 S.Ct. at 1313-14. The general rule (with exceptions) is that the Fifth Amendment privilege may not extend to collateral proceedings although it is not absolutely or necessarily foreclosed. For example, the privilege might persist during collateral proceedings to resurrect a direct appeal or where continuing adverse consequences might result. Thanks to Theodore Simon.

Counsel can argue that if post-conviction relief is granted, reprosecution might result in criminal consequences in which statements made during post-conviction proceedings might provide a link in the chain of evidence necessary for conviction.