§ 8.01 Text and Interpretation of the Privilege Against Self-Incrimination

 

The Fifth Amendment to the United States Constitution provides in relevant part that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”    

 

[A] “Person”

 

The privilege against self-incrimination applies only to natural persons. It may be invoked by witnesses as well as defendant(s). Corporations, associations, partnerships, and other entities cannot avail themselves of the privilege (the “collective entity” doctrine), but a sole proprietor may.

 

[B] “Compelled”

 

The Fifth Amendment is violated when the government compels a person, by physical or mental force, to provide incriminating oral or documentary testimonial evidence, e.g., forced confessions.  [See Chapter 10, Confessions.]

 

[C] “Criminal Case”

 

One may invoke the privilege against self-incrimination in any civil or criminal proceeding, whether formal or informal – e.g., grand jury proceedings, trials, administrative hearings, police interrogations – where statements could be used to incriminate him in a subsequent criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70 (1973).  The privilege is available only where the possible consequence of the incriminating statement is criminal prosecution; it may not be invoked to shield against personal disgrace, loss of employment, or civil confinement.

 

[D] “Witness Against Himself”

 

                        [1] Testimonial Evidence

 

A person is deemed a “witness against himself” when he provides incriminating testimonial or communicative evidence.  Evidence is of a testimonial or communicative nature if it expresses, either directly or indirectly, a factual assertion or one's thoughts about the commission of a crime.  Doe v. United States, 487 U.S. 201 (1988).  The communication can be verbal, such as an oral confession, or non-verbal, such as nodding or shaking one's head or making other gestures that communicate thoughts or facts.

 

Under some circumstances, an incorrect answer to an otherwise non-incriminating statement may also be deemed testimonial.  In Pennsylvania v. Muniz, 496 U.S. 582 (1990), a drunk driving case, the Court held that an incorrect answer regarding the date of the suspect's sixth birthday was testimonial as it supported the factual inference that the defendant's mental faculties were impaired.  (The Court distinguished the incorrect answer, which reflected his mental processes, from the slurred nature of his words in general, which were deemed to be physical evidence.)

The privilege generally applies to documentary evidence as well if the documents incriminate the person compelled to produce them.  However, as the privilege against self-incrimination is personal, it may not be asserted by a third-party (e.g., a suspect's accountant) who is compelled to produce documents that incriminate another.

 

            [2] Physical Evidence

 

The Fifth Amendment does not preclude the government from compelling a person to provide real or physical evidence.  Schmerber v. California, 384 U.S. 757 (1966) (upholding compulsory taking of a blood sample in order to test for alcohol after the defendant was arrested for driving under the influence).

 

Speech does not always constitute testimonial evidence and may be deemed physical evidence, for example:

·        a suspect in a lineup compelled to speak the words allegedly spoken by the perpetrator of the crime under investigation for the purpose of voice recognition.

·        a compelled writing sample used to analyze the handwriting itself, not the content.

·        slurred speech, suggestive of intoxication.

 

Other conduct producing evidence that is deemed physical rather than communicative, and therefore, to which the privilege does not apply, includes:

·        putting on clothing to see if it fits.

·        standing in a lineup.

·        moving one's eyes or walking on a straight line as part of a sobriety test.

·        giving blood after being arrested for driving under the influence of alcohol.

 

§ 8.02 Immunity

 

If a judge determines that a witness has legitimately asserted the privilege against self-incrimination regarding a given matter, the prosecution cannot compel the witness to testify as to that matter unless the government obtains an immunity order. An immunity order requires the witness to testify while providing him with at least as much protection as the privilege itself.

 

Two forms of immunity may be granted to a witness.  “Transactional” immunity protects a witness from prosecution for any offense that is the subject of the questioning.  “Use” immunity permits prosecution of the witness regarding the matter on which he is questioned but precludes admission of the compelled testimony at his criminal trial.

 

§ 8.03 Exceptions to the Privilege Against Self-Incrimination

 

The privilege against self-incrimination applies to situations where the statements could be used in a criminal proceeding.  Thus, testimonial evidence, even if incriminating may be compelled in a variety of non-criminal contexts.

 

[A] Required-Records Doctrine

 

Under the “required-records” doctrine, a party may be compelled to produce documents that it is required by law to maintain.  The doctrine applies where the statutory record-keeping requirement is:

(1) imposed in an essentially non-criminal and regulatory area;

(2) directed at the public at large, not at a select group inherently suspect of criminal activities; and

(3) rationally related to the regulatory purpose.

 

See, e.g., Shapiro v. United States, 335 U.S. 1 (1948) (upholding the constitutionality of federal regulations issued under the Emergency Price Control Act, which required certain licensed businesses to maintain records of their business activities and to make them available for inspection by the government upon request); California v. Byers, 402 U.S. 424 (1971) (upholding a state hit-and-run statute that required drivers involved in a vehicular accident to stop at the scene and report name and address).

 

[B] Object of Regulatory Interest

 

The ability to invoke the privilege against self-incrimination is limited when a person assumes control over items or persons that are the legitimate object of the government's non-criminal regulatory authority.  In Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990), the Supreme Court ruled that a mother who had previously lost custody of her child because of suspected child abuse, but was permitted temporary custody of the child subject to various court conditions, could not assert the privilege against self-incrimination to resist compliance with a subsequent court order that she produce the child or otherwise reveal his whereabouts.  Because the child's care and safety had become an object of the state's regulatory concern, the mother, upon accepting temporary custody of the child, became subject “to the routine operation of the regulatory system” and thus was required to comply with its requirements.