WHAT EVERY PARENT SHOULD KNOW

INFORMATION ALL PARENTS NEED TO KNOW

http://planet.infowars.com/resistance/court-ordered-drug-tests-and-why-the-5th-amendment-gives-us-the-right-to-refuse-to-perform-them


 

September 21, 2012 in Resistance

Next time you are on probation/parole and have to take a drug test in the presence of your probation officer, try using your 5th amendment rights to get out of taking the drug test. When your PO gives you the cup to urinate in it, tell him, “I would like to plea the 5th amendment and refuse to take this test as I do not wish to consent to anything which could be used as a form of self-incrimination.” The PO will probably try to tell you that you do not have the right to refuse the test, but make it clear to him that you know he is lying and say, “The fact that this is a post-conviction sentence is irrelevant because my 5th amendment right to refuse self-incrimination always applies because a ‘right’ is a special privilege which can never be taken away from me no matter how badly I behave.” And if your PO tries to tell you that the 5th amendment only applies to verbal incrimination, tell him, “The 5th amendment applies to both verbal and non-verbal self-incrimination as the courts implied in the case Hiibel v. 6th District Court of Nevada where they stated that people can refuse to show ID if showing the ID would prove that they are a crook.”
Your PO is probably gonna go ballistic at this point since he is used to being obeyed, and he might even arrest you. But if does that then you will have the opportunity to sue him. So remember, YOUR 5TH AMENDMENT RIGHT TO REFUSE SELF-INCRIMINATION GIVES YOU THE RIGHT TO REFUSE A COURT-ORDERED DRUG TEST!

Development and Scope

Source of this clause was the maxim ''nemo tenetur seipsum accusare,'' that ''no man is bound to accuse himself.'' The maxim is but one aspect of two different systems of law enforcement which competed in England for acceptance; the accusatorial and the inquisitorial. In the accusatorial system, which predated the reign of Henry II but was expanded and extended by him, first the community and then the state by grand and petit juries proceeded against alleged wrongdoers through the examination of others, and in the early years through examination of the defendant as well. The inquisitorial system, which developed in the ecclesiastical courts, compelled the alleged wrongdoer to affirm his culpability through the use of the oath ex officio. Under the oath, an official had the power to make a person before him take an oath to tell the truth to the full extent of his knowledge as to all matters about which he would be questioned; before administration of the oath the person was not advised of the nature of the charges against him, or whether he was accused of crime, and was also not informed of the nature of the questions to be asked. 161

The use of this oath in Star Chamber proceedings, especially to root out political heresies, combined with opposition to the ecclesiastical oath ex officio, led over a long period of time to general acceptance of the principle that a person could not be required to accuse himself under oath in any proceeding before an official tribunal seeking information looking to a criminal prosecution, or before a magistrate investigating an accusation against him with or without oath, or under oath in a court of equity or a court of common law. 162 The precedents in the colonies are few in number, but following the Revolution six states had embodied the privilege against self-incrimination in their constitutions, 163 and the privilege was one of those recommended by several state ratifying conventions for inclusion in a federal bill of rights. 164 Madison's version of the clause read ''nor shall be compelled to be a witness against himself,'' 165 but upon consideration by the House an amendment was agreed to insert ''in any criminal case'' in the provision. 166

The historical studies cited demonstrate that in England and the colonies the privilege was narrower than the interpretation now prevailing, a common situation reflecting the gradual expansion, or occasional contracting, of constitutional guarantees based on the judicial application of the policies underlying the guarantees in the context of new factual patterns and practices. The difficulty is that the Court has generally failed to articulate the policy objectives underlying the privilege, usually citing a ''complex of values'' when it has attempted to state the interests served by it. 167 Commonly mentioned in numerous cases was the assertion that the privilege was designed to protect the innocent and to further the search for truth. 168 It appears now, however, that the Court has rejected both of these as inapplicable and has settled upon the principle that the clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion. 169 In order to protect these interests and to preserve these values, the privilege ''is not to be interpreted literally.'' Rather, the ''sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.'' 170

''The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . . [I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.'' 171 Thus, a judge who would deny a claim of the privilege must be '''perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate.'' 172 The witness must have reasonable cause to apprehend danger from an answer, but he may not be the sole judge of the validity of his claim. While the trial judge may not require a witness to disclose so much of the danger as to render the privilege nugatory, he must determine whether there is a reasonable apprehension of incrimination by considering the circumstances of the case, his knowledge of matters surrounding the inquiry, and the nature of the evidence which is demanded from the witness. 173 One must explicitly claim his privilege or he will be deemed to have waived it, and waiver may be found where the witness has answered some preliminary questions but desires to stop at a certain point. 174

The privilege against self-incrimination is a personal one and cannot be utilized by or on behalf of any organization, such as a corporation. Thus, a corporation cannot object on self-incrimination grounds to a subpoena of its records and books or to the compelled testimony of those corporate agents who have been given personal immunity from criminal prosecution. 175 Neither may a corporate official with custody of corporate documents which incriminate him personally resist their compelled production on the assertion of his personal privilege. 176

A witness has traditionally been able to claim the privilege in any proceeding whatsoever in which testimony is legally required when his answer might be used against him in that proceeding or in a future criminal proceeding or when it might be exploited to uncover other evidence against him. 177 Conversely, there is no valid claim on the ground that the information sought can be used in proceedings which are not criminal in nature. 178 The Court in recent years has also applied the privilege to situations, such as police interrogation of suspects, in which there is no legal compulsion to speak. 179 What the privilege protects against is compulsion of ''testimonial'' disclosures; requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, to model particular clothing, or to give samples of handwriting, fingerprints, or blood does not compel him to incriminate himself within the mean ing of the clause, 180 although compelling him to produce private papers may. 181

The protection is against ''compulsory'' incrimination, and traditionally the Court has treated within the clause only those compulsions which arise from legally enforceable obligations, culminating in imprisonment for refusal to testify or to produce documents. 182 But the compulsion need not be imprisonment; it can as well be termination of public employment 183 or disbarment of a lawyer 184 as a legal consequence of a refusal to make incriminating admissions. In extending the concept of coercion, however, the Court has not developed a clear doctrinal explanation to identify the differences between permissible and impermissible coercion. As a general rule, it may be said that all of these cases involve the ordering of some feature of a trial in such a way that a defendant must choose between or among rights, with one choice being to risk or to submit to self-incriminating disclosures by his actions.

It has long been the rule that a defendant who takes the stand in his own behalf cannot then claim the privilege to defeat cross- examination on matters reasonably related to the subject matter of his direct examination, 185 and that such a defendant may be impeached by proof of prior convictions. 186 But in Griffin v. California, 187 the Court refused to permit prosecutorial or judicial comment to the jury upon a defendant's refusal to take the stand in his own behalf, because such comment was a ''penalty imposed by courts for exercising a constitutional privilege'' and ''[i]t cuts down on the privilege by making its assertion costly.'' 188 Prosecutors' comments violating the Griffin rule can nonetheless constitute harmless error. 189 Neither may a prosecutor impeach a defendant's trial testimony through use of the fact that upon his arrest and receipt of a Miranda warning he remained silent and did not give the police the exculpatory story he told at trial. 190 But where the defendant took the stand and testified, the Court permitted the impeachment use of his pre-arrest silence when that silence had in no way been officially encouraged, through a Miranda warning or otherwise. 191

Further, the Court held inadmissible at the subsequent trial a defendant's testimony at a hearing to suppress evidence wrongfully seized, since use of the testimony would put the defendant to an impermissible choice between asserting his right to remain silent and invoking his right to be free of illegal searches and seizures. 192 The Court also proscribed the introduction at a second trial of the defendant's testimony at his first trial, given to rebut a confession which was subsequently held inadmissible, since the testimony was in effect ''fruit of the poisonous tree,'' and had been ''coerced'' from the defendant through use of the confession. 193 Most potentially far- reaching was a holding that invalidated the penalty structure of a statute under which defendants could escape a possible death sentence by entering a guilty plea; the statute ''needlessly encourage[d]'' waivers of defendant's Fifth Amendment right to plead not guilty and his Sixth Amendment right to a jury trial. 194

While this ''needless encouragement'' test assessed the nature of the choice required to be made by defendants against the strength of the governmental interest in the system requiring the choice, the Court soon devolved another test stressing the voluntariness of the choice. A guilty plea entered by a defendant who correctly understands the consequences of the plea is voluntary unless coerced or obtained under false pretenses; moreover, there is no impermissible coercion where the defendant has the effective assistance of counsel. 195 The Court in an opinion by Justice Harlan then formulated still another test in holding that a defendant in a capital case in which the jury in one process decides both guilt and sentence could be put to a choice between remaining silent on guilt or admitting guilt and being able to put on evidence designed to mitigate the possible sentence. The pressure to take the stand in response to the sentencing issue, said the Court, was not so great as to impair the policies underlying the self-incrimination clause, policies described in this instance as proscription of coercion and of cruelty in putting the defendant to an undeniably ''hard'' choice. 196 Similarly, it has been held that requiring a defendant to give notice to the prosecution before trial of his intention to rely on an alibi defense and to give the names and addresses of witnesses who will support it does not violate the clause. 197 Neither does it violate a defendant's self-incrimination privilege to create a presumption upon the establishment of certain basic facts which the jury may utilize to infer defendant's guilt unless he rebuts the presumption. 198

The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution is precluded, 199 or if the result of the answers is not incrimination, but rather harm to reputation or exposure to infamy or disgrace. 200 The clause does not prevent a public employer from discharging an employee who, in an investigation specifically and narrowly directed at the performance of the employee's official duties, refuses to cooperate and to provide the employer with the desired information on grounds of self-incrimination. 201 But it is unclear under what other circumstances a public employer may discharge an employee who has claimed his privilege before another investigating agency. 202

Finally, the rules established by the clause and the judicial interpretations are applicable against the States to the same degree that they apply to the Federal Government, 203 and neither sovereign can compel discriminatory admissions which would incriminate the person in the other jurisdiction. 204

Footnotes

[Footnote 161] Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, in Essays in History and Political Theory in Honor of Charles Howard McIlwain 199 (C. Wittke ed. 1936).

[Footnote 162] The traditional historical account is 8 J. Wigmore, A Treatise on the Anglo-American System of Evidence Sec. 2250 (J. McNaughton rev. 1961), but more recent historical studies have indicated that Dean Wigmore was too grudging of the privilege. Leonard Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (1968); Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1 (1949).

[Footnote 163] 3 F. Thorpe, The Federal and State Constitutions, reprinted in H. Doc. No. 357, 59th Congress, 2d sess. 1891 (1909) (Massachusetts); 4 id. at 2455 (New Hampshire); 5 id. at 2787 (North Carolina), 3038 (Pennsylvania); 6 id. at 3741 (Vermont); 7 id. at 3813 (Virginia).

[Footnote 164] Amendments were recommended by an ''Address'' of a minority of the Pennsylvania convention after they had been voted down as a part of the ratification action, 2 Bernard Schwartz, The Bill of Rights: A Documentary History 628, 658, 664 (1971), and then the ratifying conventions of Massachusetts, South Carolina, New Hampshire, Virginia, and New York formally took this step.

[Footnote 165] 1 Annals of Congress 434 (June 8, 1789).

[Footnote 166] Id. at 753 (August 17, 1789).

[Footnote 167] ''It reflects many of our fundamental values and most noble aspirations; our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, . . .'; our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' . . . , our distrust of self- deprecatory statement; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.''' Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1954). A dozen justifications have been suggested for the privilege. 8 J. Wigmore, A Treatise on the Anglo-American System of Evidence 2251 (J. McNaughton rev. 1961).

[Footnote 168] E.g. Twining v. New Jersey, 211 U.S. 78, 91 (1908); Ullmann v. United States, 350 U.S. 422, 426 (1956); Quinn v. United States, 349 U.S. 155, 162 -63 (1955).

[Footnote 169] ''[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution 'shoulder the entire load.' . . .

[Footnote 171] Hoffman v. United States, 341 U.S. 479, 486 -87 (1951). See also Emspak v. United States, 349 U.S. 190 (1955); Blau v. United States, 340 U.S. 159 (1950); Blau v. United States, 340 U.S. 332 (1951).

[Footnote 172] 341 U.S. at 488 (quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881)). For an application of these principles, see Malloy v. Hogan, 378 U.S. 1, 11 -14 (1964), and id. at 33 (Justices White and Stewart dissenting). Where government is seeking to enforce an essentially noncriminal statutory scheme through compulsory disclosure, some Justices would apparently relax the Hoffman principles. Cf. California v. Byers, 402 U.S. 424 (1971) (plurality opinion).

[Footnote 173] Hoffman v. United States, 341 U.S. 479 (1951); Mason v. United States, 244 U.S. 362 (1917).

[Footnote 174] Rogers v. United States, 340 U.S. 367 (1951); United States v. Monia, 317 U.S. 424 (1943). The ''waiver'' concept here as in other recent cases has been pronounced ''analytically [un]sound,'' with the Court preferring to reserve the term ''waiver'' ''for the process by which one affirmatively renounces the protection of the privilege.'' Garner v. United States, 424 U.S. 648, 654 , n.9 (1976). Thus, the Court has settled upon the concept of ''compulsion'' as applied to ''cases where disclosures are required in the face of claim of privilege.'' Id. ''[I]n the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not 'compelled' him to incriminate himself.'' Id. at 654. Similarly, the Court has enunciated the concept of ''voluntariness'' to be applied in situations where it is claimed that a particular factor denied the individual a ''free choice to admit, to deny, or to refuse to answer.'' Id. at 654 n.9, 656-65.

[Footnote 175] United States v. White, 322 U.S. 694, 701 (1944); Baltimore & O.R.R. v. ICC, 221 U.S. 612, 622 (1911); Hale v. Henkel, 201 U.S. 43, 69 -70, 74-75 (1906).

[Footnote 176] United States v. White, supra, 699-700; Wilson v. United States, 221 U.S. 361, 384 -385 (1911). But the government may make no evidentiary use of the act of production in proceeding individually against the corporate custodian. Braswell v. United States, 487 U.S. 99 (1988). Cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968); United States v. Rylander, 460 U.S. 752 (1983) (witness who had failed to appeal production order and thus had burden in contempt proceeding to show inability to then produce records could not rely on privilege to shift this evidentiary burden).

[Footnote 177] Thus, not only may a defendant or a witness in a criminal trial, including a juvenile proceeding, In re Gault, 387 U.S. 1, 42 -57 (1967), claim the privilege but so may a party or a witness in a civil court proceeding, McCarthy v. Arndstein, 266 U.S. 34 (1924), a potential defendant or any other witness before a grand jury, Reina v. United States, 364 U.S. 507 (1960); Counselman v. Hitchcock, 142 U.S. 547, 563 (1892), or a witness before a legislative inquiry, Watkins v. United States, 354 U.S. 178, 195 -96 (1957); Quinn v. United States, 349 U.S. 155 (1955); Emspak v. United States, 349 U.S. 190 (1955), or before an administrative body. In re Groban, 352 U.S. 330, 333 , 336-37, 345-46 (1957); ICC v. Brimson, 154 U.S. 447, 478 -80 (1894).

[Footnote 178] Allen v. Illinois, 478 U.S. 364 (1986) (declaration that person is ''sexually dangerous'' under Illinois law is not a criminal proceeding); Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984) (revocation of probation is not a criminal proceeding, hence ''there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings''). In Murphy, the Court went on to explain that ''a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination. Under such circumstances, a probationer's 'right to immunity as a result of his compelled testimony would not be at stake' . . . and nothing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer . . . .'' Id.

[Footnote 179] Miranda v. Arizona, 384 U.S. 436 (1966).

[Footnote 180] Schmerber v. California, 384 U.S. 757, 764 (1966); United States v. Wade, 388 U.S. 218, 221 -23 (1967); Holt v. United States, 218 U.S. 245, 252 (1910). In California v. Byers, 402 U.S. 424 (1971), four Justices believed that requiring any person involved in a traffic accident to stop and give his name and address did not involve testimonial compulsion and therefore the privilege was inapplicable, id. at 431-34 (Chief Justice Burger and Justices Stewart, White, and Blackmun), but Justice Harlan, id. at 434 (concurring), and Justices Black, Douglas, Brennan, and Marshall, id. at 459, 464 (dissenting), disagreed. In South Dakota v. Neville, 459 U.S. 553 (1983), the Court indicated as well that a State may compel a motorist suspected of drunk driving to submit to a blood alcohol test, and may also give the suspect a choice about whether to submit, but use his refusal to submit to the test as evidence against him. The Court rested its evidentiary ruling on absence of coercion, preferring not to apply the sometimes difficult distinction between testimonial and physical evidence. In another case, involving roadside videotaping of a drunk driving suspect, the Court found that the slurred nature of the suspect's speech, as well as his answers to routine booking questions as to name, address, weight, height, eye color, date of birth, and current age, were not testimonial in nature. Pennsylvania v. Muniz, 496 U.S. 582 (1990). On the other hand, the suspect's answer to a request to identify the date of his sixth birthday was considered testimonial. Id.

[Footnote 181] Fisher v. United States, 425 U.S. 391 (1976), however, holds that compelling a taxpayer by subpoena to produce documents produced by his accountants from his own papers does not involve testimonial self-incrimination and is not barred by the privilege. ''[T]he Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.'' Id. at 408 (emphasis by Court). Even if the documents contained the writing of the person being compelled to produce them, that would be insufficient to trigger the privilege, unless the government had compelled him to write in the first place. Id. at 410 n.11. Only if by complying with the subpoena the person would be making a communication that was both ''testimonial'' and ''incriminating,'' such as by conceding the existence of the papers or indicating that these are the papers sought, would he have a valid claim of privilege, and even there one would have to evaluate the facts and circumstances of the particular case to reach a determination. Id. at 410. Even further removed from the protection of the privilege is seizure pursuant to a search warrant of business records in the handwriting of the defendant. Andresen v. Maryland, 427 U.S. 463 (1976). A court order compelling a target of a grand jury investigation to sign a consent directive authorizing foreign banks to disclose records of any and all accounts over which he had a right of withdrawal is not testimonial in nature, since the factual assertions are required of the banks and not of the target. Doe v. United States, 487 U.S. 201 (1988). But in United States v. Doe, 465 U.S. 605 (1984), the Court distinguished Fisher, upholding lower courts' findings that the act of producing tax records implicates the privilege because it would compel admission that the records exist, that they were in the taxpayer's possession, and that they are authentic. Similarly, a juvenile court's order to produce a child implicates the privilege, because the act of compliance ''would amount to testimony regarding [the subject's] control over and possession of [the child].'' Baltimore Dep't of Social Services v. Bouknight, 493 U.S. 549, 555 (1990).

[Footnote 182] E.g., Marchetti v. United States, 390 U.S. 39 (1968) (criminal penalties attached to failure to register and make incriminating admissions); Malloy v. Hogan, 378 U.S. 1 (1964) (contempt citation on refusal to testify). See also South Dakota v. Neville, 459 U.S. 553 (1983) (no compulsion in introducing evidence of suspect's refusal to submit to blood alcohol test, since state could have forced suspect to take test and need not have offered him a choice); Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984) (no coercion in requirement that applicants for federal financial assistance for higher education reveal whether they have registered for draft).

[Footnote 183] Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280 (1968). See also Lefkowitz v. Turley, 414 U.S. 70 (1973), holding unconstitutional state statutes requiring the disqualification for five years of contractors doing business with the State if at any time they refused to waive immunity and answer questions respecting their transactions with the State. The State can require employees or contractors to respond to inquiries, but only if it offers them immunity sufficient to supplant the privilege against self-incrimination. See also Lefkowitz v. Cunningham, 431 U.S. 801 (1977).

[Footnote 184] Spevack v. Klein, 385 U.S. 511 (1967).

[Footnote 185] Brown v. Walker, 161 U.S. 591, 597 -98 (1896); Fitzpatrick v. United States, 178 U.S. 304, 314 -16 (1900); Brown v. United States, 356 U.S. 148 (1958).

[Footnote 186] Spencer v. Texas, 385 U.S. 554, 561 (1967); cf. Michelson v. United States, 335 U.S. 469 (1948).

[Footnote 187] 380 U.S. 609, 614 (1965). The result had been achieved in federal court through statutory enactment. 18 U.S.C. Sec. 3481. See Wilson v. United States, 149 U.S. 60 (1893). In Carter v. Kentucky, 450 U.S. 288 (1981), the Court held that the self-incrimination clause required a State, upon defendant's request, to give a cautionary instruction to the jurors that they must disregard defendant's failure to testify and not draw any adverse inferences from it. This result, too, had been accomplished in the federal courts through statutory construction. Bruno v. United States, 308 U.S. 287 (1939). In Lakeside v. Oregon, 435 U.S. 333 (1978), the Court held that a court may give such an instruction, even over defendant's objection. Carter v. Kentucky was applied in James v. Kentucky, 466 U.S. 341 (1983) (request for jury ''admonition'' sufficient to invoke right to ''instruction'').

[Footnote 188] While the Griffin rule continues to apply when the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, it does not apply to a prosecutor's ''fair response'' to a defense counsel's allegation that the government had denied his client the opportunity to explain his actions. United States v. Robinson, 485 U.S. 25, 32 (1988).

[Footnote 189] Chapman v. California, 386 U.S. 18 (1967); United States v. Hasting, 461 U.S. 499 (1983).

[Footnote 190] Doyle v. Ohio, 426 U.S. 610 (1976). Post-arrest silence, the Court stated, is inherently ambiguous, and to permit use of the silence would be unfair since the Miranda warning told the defendant he could be silent. The same result had earlier been achieved under the Court's supervisory power over federal trials in United States v. Hale, 422 U.S. 171 (1975). The same principles apply to bar a prosecutor's use of Miranda silence as evidence of an arrestee's sanity. Wainwright v. Greenfield, 474 U.S. 284 (1986). In determining whether a state prisoner is entitled to federal habeas corpus relief because the prosecution violated due process by using his post-Miranda silence for impeachment purposes at trial, the proper standard for harmless-error review is that announced in Kotteakos v. United States, 328 U.S. 750, 776 (1946)–whether the due process error ''had substantial and injurious effect or influence in determining the jury's verdict–not the stricter ''harmless beyond a reasonable doubt'' standard of Chapman v. California, 386 U.S. 18, 24 (1967), applicable on direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993).

[Footnote 191] Jenkins v. Anderson, 447 U.S. 231 (1980). Cf. Baxter v. Palmigiano, 425 U.S. 308 (1976) (prison disciplinary hearing may draw adverse inferences from inmate's assertion of privilege so long as this was not the sole basis of decision against him).

[Footnote 192] Simmons v. United States, 390 U.S. 377 (1968). The rationale of the case was subsequently limited to Fourth Amendment grounds in McGautha v. California, 402 U.S. 183, 210 -13 (1971).

[Footnote 193] Harrison v. United States, 392 U.S. 219 (1968).

[Footnote 194] Jackson v. United States, 390 U.S. 570, 583 (1968).

[Footnote 195] Parker v. North Carolina, 397 U.S. 790 (1970); Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970). Parker and Brady entered guilty pleas to avoid the death penalty when it became clear that the prosecution had solid evidence of their guilt; Richardson pled guilty because of his fear that an allegedly coerced confession would be introduced into evidence.

[Footnote 196] McGautha v. California, 402 U.S. 183, 210 -20 (1971). When the Court subsequently required bifurcated trials in capital cases, it was on the basis of the Eighth Amendment, and represented no withdrawal from the position described here. Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 357 (1978).

[Footnote 197] Williams v. Florida, 399 U.S. 78, 80 -86 (1970). The compulsion of choice, Justice White argued for the Court, proceeded from the strength of the State's case and not from the disclosure requirement. That is, the rule did not affect whether or not the defendant chose to make an alibi defense and to call witnesses, but merely required him to accelerate the timing. It appears, however, that in Brooks v. Tennessee, 406 U.S. 605 (1972), the Court utilized the ''needless encouragement'' test in striking down a state rule requiring the defendant to testify before any other defense witness or to forfeit the right to testify at all. In the Court's view, this impermissibly burdened the defendant's choice whether to testify or not. Another prosecution discovery effort was approved in United States v. Nobles, 422 U.S. 233 (1975), in which a defense investigator's notes of interviews with prosecution witnesses were ordered disclosed to the prosecutor for use in cross-examination of the investigator. The Court discerned no compulsion upon defendant to incriminate himself.

[Footnote 198] ''The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.'' Yee Hem v. United States, 268 U.S. 178, 185 (1925), quoted with approval in Turner v. United States, 396 U.S. 398, 418 n.35 (1970). Justices Black and Douglas dissented on self-incrimination grounds. Id. at 425. And see United States v. Gainey, 380 U.S. 63, 71 , 74 (1965) (dissenting opinions). For due process limitations on such presumptions, see discussion under the Fourteenth Amendment, infra.

[Footnote 199] Prosecution may be precluded by tender of immunity, infra, pp.1312-15, or by pardon, Brown v. Walker, 161 U.S. 591, 598 -99 (1896). The effect of a mere tender of pardon by the President remains uncertain. Cf. Burdick v. United States, 236 U.S. 79 (1915) (acceptance necessary, and self-incrimination is possible in absence of acceptance); Biddle v. Perovich, 274 U.S. 480 (1927) (acceptance not necessary to validate commutation of death sentence to life imprisonment).

[Footnote 200] Brown v. Walker, 161 U.S. 591, 605 -06 (1896); Ullmann v. United States, 350 U.S. 422, 430 -31 (1956). Minorities in both cases had contended for a broader rule. Walker, 161 U.S. at 631 (Justice Field dissenting); Ullmann, 350 U.S. at 454 (Justice Douglas dissenting).

[Footnote 201] Gardner v. Broderick, 392 U.S. 273, 278 (1968). Testimony compelled under such circumstances is, even in the absence of statutory immunity, barred from use in a subsequent criminal trial by force of the Fifth Amendment itself. Garrity v. New Jersey, 385 U.S. 493 (1967). However, unlike public employees, persons subject to professional licensing by government appear to be able to assert their privilege and retain their licenses. Cf. Spevack v. Klein, 385 U.S. 511 (1967) (lawyer may not be disbarred solely because he refused on self-incrimination grounds to testify at a disciplinary proceeding), approved in Gardner v. Broderick, 392 U.S. at 277 -78. Justices Harlan, Clark, Stewart, and White dissented generally. 385 U.S. 500, 520 , 530.

[Footnote 202] See Slochower v. Board of Education, 350 U.S. 551 (1956), limited by Lerner v. Casey, 357 U.S. 468 (1958), and Nelson v. County of Los Angeles, 362 U.S. 1 (1960), which were in turn apparently limited by Garrity and Gardner.

[Footnote 203] Malloy v. Hogan, 378 U.S. 1 (1964), (overruling Twining v. New Jersey, 211 U.S. 78 (1908), and Adamson v. California, 332 U.S. 46 (1947)).

[Footnote 204] Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964), (overruling United States v. Murdock, 284 U.S. 141 (1931) (Federal Government could compel a witness to give testimony which might incriminate him under state law), Knapp v. Schweitzer, 357 U.S. 371 (1958) (State may compel a witness to give testimony which might incriminate him under federal law), and Feldman v. United States, 322 U.S. 487 (1944) (testimony compelled by a State may be introduced into evidence in the federal courts)). Murphy held that a State could compel testimony under a grant of immunity but that since the State could not extend the immunity to federal courts the Supreme Court would not permit the introduction of evidence into federal courts which had been compelled by a State or which had been discovered because of state compelled testimony. The result was apparently a constitutionally compelled one arising from the Fifth Amendment itself, 378 U.S. at 75 - 80, rather than one taken pursuant to the Court's supervisory power as Justice Harlan would have preferred. Id. at 80 (concurring). Congress has power to confer immunity in state courts as well as in federal in order to elicit information, Adams v. Maryland, 347 U.S. 179 (1954), but whether Congress must do so or whether the immunity would be conferred simply through the act of compelling the testimony Murphy did not say.

http://www.lectlaw.com/def/f083.htm

FIFTH AMENDMENT [U.S. Constitution]

'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.'

The Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72). A reasonable belief that information concerning income or assets might be used to establish criminal failure to file a tax return can support a claim of Fifth Amendment privilege. See U.S. v. Rendahl, 746 F.2d 553, 55-56 (9th Cir.'84).

The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis. Rendahl, 746 F.2d at 555, citing with approval U.S. v. Bell, 448 F.2d 40, 42 (9th Cir.'71) (Fifth Amendment challenge premature on appeal from enforcement order; appellant must present himself for questioning after enforcement and as to each question elect to raise or not to raise the defense).

The appropriate device for compelling answers to incriminating questions is a government grant of use immunity. See Sharp, 920 F.2d at 1172.

5th Amendment Annotations

 

 

 

Annotation 7 - Fifth Amendment

SELF-INCRIMINATION

Development and Scope

Source of this clause was the maxim ''nemo tenetur seipsum accusare,'' that ''no man is bound to accuse himself.'' The maxim is but one aspect of two different systems of law enforcement which competed in England for acceptance; the accusatorial and the inquisitorial. In the accusatorial system, which predated the reign of Henry II but was expanded and extended by him, first the community and then the state by grand and petit juries proceeded against alleged wrongdoers through the examination of others, and in the early years through examination of the defendant as well. The inquisitorial system, which developed in the ecclesiastical courts, compelled the alleged wrongdoer to affirm his culpability through the use of the oath ex officio. Under the oath, an official had the power to make a person before him take an oath to tell the truth to the full extent of his knowledge as to all matters about which he would be questioned; before administration of the oath the person was not advised of the nature of the charges against him, or whether he was accused of crime, and was also not informed of the nature of the questions to be asked. 161

The use of this oath in Star Chamber proceedings, especially to root out political heresies, combined with opposition to the ecclesiastical oath ex officio, led over a long period of time to general acceptance of the principle that a person could not be required to accuse himself under oath in any proceeding before an official tribunal seeking information looking to a criminal prosecution, or before a magistrate investigating an accusation against him with or without oath, or under oath in a court of equity or a court of common law. 162 The precedents in the colonies are few in number, but following the Revolution six states had embodied the privilege against self-incrimination in their constitutions, 163 and the privilege was one of those recommended by several state ratifying conventions for inclusion in a federal bill of rights. 164 Madison's version of the clause read ''nor shall be compelled to be a witness against himself,'' 165 but upon consideration by the House an amendment was agreed to insert ''in any criminal case'' in the provision. 166

The historical studies cited demonstrate that in England and the colonies the privilege was narrower than the interpretation now prevailing, a common situation reflecting the gradual expansion, or occasional contracting, of constitutional guarantees based on the judicial application of the policies underlying the guarantees in the context of new factual patterns and practices. The difficulty is that the Court has generally failed to articulate the policy objectives underlying the privilege, usually citing a ''complex of values'' when it has attempted to state the interests served by it. 167 Commonly mentioned in numerous cases was the assertion that the privilege was designed to protect the innocent and to further the search for truth. 168 It appears now, however, that the Court has rejected both of these as inapplicable and has settled upon the principle that the clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion. 169 In order to protect these interests and to preserve these values, the privilege ''is not to be interpreted literally.'' Rather, the ''sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.'' 170

''The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . . [I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.'' 171 Thus, a judge who would deny a claim of the privilege must be '''perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate.'' 172 The witness must have reasonable cause to apprehend danger from an answer, but he may not be the sole judge of the validity of his claim. While the trial judge may not require a witness to disclose so much of the danger as to render the privilege nugatory, he must determine whether there is a reasonable apprehension of incrimination by considering the circumstances of the case, his knowledge of matters surrounding the inquiry, and the nature of the evidence which is demanded from the witness. 173 One must explicitly claim his privilege or he will be deemed to have waived it, and waiver may be found where the witness has answered some preliminary questions but desires to stop at a certain point. 174

The privilege against self-incrimination is a personal one and cannot be utilized by or on behalf of any organization, such as a corporation. Thus, a corporation cannot object on self-incrimination grounds to a subpoena of its records and books or to the compelled testimony of those corporate agents who have been given personal immunity from criminal prosecution. 175 Neither may a corporate official with custody of corporate documents which incriminate him personally resist their compelled production on the assertion of his personal privilege. 176

A witness has traditionally been able to claim the privilege in any proceeding whatsoever in which testimony is legally required when his answer might be used against him in that proceeding or in a future criminal proceeding or when it might be exploited to uncover other evidence against him. 177 Conversely, there is no valid claim on the ground that the information sought can be used in proceedings which are not criminal in nature. 178 The Court in recent years has also applied the privilege to situations, such as police interrogation of suspects, in which there is no legal compulsion to speak.

 

Posted: Jan 31, 2013 2:29 AM Updated: Jan 31, 2013 9:39 AM

(AP Photo/Patrick Sison). Police officers leave an office building after a shooting at the building in Phoenix on Wednesday, Jan. 30, 2013.

(AP Photo/Patrick Sison). Police officers leave an office building after a shooting at the building in Phoenix on Wednesday, Jan. 30, 2013.

(AP Photo/Phoenix Police Department)

(AP Photo/Phoenix Police Department)

(AP Photo/The Arizona Republic, Michael Schennum). People watch a women being taken to a paramedic truck from an office building where a shooter opened fire in north central Phoenix on Wednesday, Jan. 30, 2013.

(AP Photo/The Arizona Republic, Michael Schennum). People watch a women being taken to a paramedic truck from an office building where a shooter opened fire in north central Phoenix on Wednesday, Jan. 30, 2013.

(AP Photo/Patrick Sison). SWAT police officers inspect the roof of an office building after a shooting at the building in Phoenix on Wednesday, Jan. 30, 2013.

(AP Photo/Patrick Sison). SWAT police officers inspect the roof of an office building after a shooting at the building in Phoenix on Wednesday, Jan. 30, 2013.

(AP Photo/The Arizona Republic, Michael Schennum). A woman is taken to a paramedic truck from an office building where a shooter opened fire in north central Phoenix on Wednesday, Jan. 30, 2013.

(AP Photo/The Arizona Republic, Michael Schennum).

A woman is taken to a paramedic truck from an office building where a shooter opened fire in north central Phoenix on Wednesday, Jan. 30, 2013.

By JACQUES BILLEAUD
Associated Press

PHOENIX (AP) - Phoenix police said Thursday they have found a body that matches the description of the suspect in an office shooting that killed a man and critically wounded another.

The vehicle that Arthur Douglas Harmon, 70, was likely driving was found in a parking lot in the Phoenix suburb of Mesa. A body matching Harmon's description was found nearby, said Sgt. Steve Martos, spokesman.

The person died of an apparent self-inflicted gunshot wound, he said.

Harmon drew a gun and shot both men at the end of a mediation session Wednesday morning at an office building in north-central Phoenix, police said.

Steve Singer, 48, died hours later. Mark Hummels, 43, with the Phoenix law firm Osborn Maledon, was in critical condition. A 32-year-old woman was also shot but suffered non-life threatening injuries. Harmon also shot at someone who tried to follow him to get his license plate number, authorities said.

"We believe the two men were the targets. It was not a random shooting," said Sgt. Tommy Thompson, a Phoenix police spokesman.

Singer was the CEO of Scottsdale-based Fusion Contact Centers LLC, which had hired Harmon to refurbish office cubicles at two call centers in California.

According to court documents, Harmon was scheduled to go to a law office in the building where the shooting took place for a settlement conference in a lawsuit he filed last April against Fusion.

Fusion said Harmon was paid nearly $30,000 under the $47,000 contract. But the company asked him to repay much of the money when it discovered that the cubicles could not be refurbished, according to the documents.

Harmon argued Fusion hung him out to dry by telling him to remove and store 206 "worthless" work stations after the mix-up was discovered. Harmon said Fusion then told him that the company decided to use a competitor.

Harmon's lawsuit had sought payment for the remainder of the contract, $20,000 in damages and reimbursement for storage fees and legal costs.

Hummels represented Fusion in the lawsuit. Harmon represented himself.

The shooting took place in the building where Pro tempore Judge Ira Schwartz, who scheduled the mediation meeting, has an office.

The response to the shooting centered on the building - home to insurance, medical and law offices - but soon spread to a north-Phoenix home and a central-Phoenix high-rise office building where Hummels' office is located.

SWAT teams and two armored vehicles surrounded the house. Police served a search warrant to enter the house, which county property records show was sold by Harmon to his son last year for $26,000.

For a time, officers used a megaphone to ask Harmon to surrender, believing he might be inside the home.

Lois Allen, who has lived across the street from the Harmon home for about eight years, said she was startled to see all the police cars in the neighborhood.

She said she never met Harmon but had seen him walking a dog before.

The gunfire at the office complex prompted terrified workers to lock the doors to their offices and hide far from the windows. SWAT officers searched the building.

"Everyone was just scared, honestly, just scared," said Navika Sood, assistant director of nursing at First at Home Health Services who along with her co-workers locked the entrances to their office.

Sood said police evacuated the office about 30 minutes after she first heard the popping noises.

Becky Neher, who works for a title company in the building, said she heard two gunshots.

"Someone yelled, 'We have a shooter,'" Neher said. She looked out her second-story office and saw two people lying on the ground outside the back of the building.

The shooting took place on the same day that hearings on legislation to address gun violence were convened in Washington, with former Arizona Rep. Gabrielle Giffords testifying for stricter gun controls. A gunman shot Giffords in the head during a shooting rampage in Tucson in January 2011.

Contributing to this report were Associated Press writers Paul Davenport, Felicia Fonseca, Terry Tang and Walter Berry in Phoenix, and AP researcher Rhonda Shafner in New York

Copyright 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

http://www.tucsonnewsnow.com/story/20856963/child-hospitalized-after-mother-allegedly-chokes-him

Posted: Jan 30, 2013 12:29 PM Updated: Jan 30, 2013 10:22 PM

By Carissa Planalp - email

Apartment complex where 10-year-old was allegedly strangled. (Source: Carissa Planalp)

Apartment complex where 10-year-old was allegedly strangled. (Source: Carissa Planalp)

TUCSON, AZ (Tucson News Now) -

A local woman who called 911 to report she strangled her son is facing attempted murder and child abuse charges.

Tucson Police say Jean Cataline, 49, was arrested and faces a charge of attempted 1st degree murder and a felony child abuse charge. She has not yet been booked into jail.

Cataline called 911 after 10 a.m. to say she had strangled her 10-year-old son with a cord. 

According to TPD the child was taken to University of Arizona Medical Center for treatment and remains there in critical condition.  

Police say Cataline's other child, a 17-year-old boy, has been put in custody of Child Protective Services. According to police, the boys' father recently died.

Stay with Tucson News Now for updates as they come in.

Copyright 2013 Tucson News Now All rights reserved.

Please Make Note

Please make note that I, Jessica Lynn Hepner the creator of What Every Parent Should Know, is not giving legal advice. I am not a lawyer. I am giving you knowledge via first hand experiences.

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Save A Life by Angie Kassabie

Save A Life by Angie Kassabie
I URGE ALL MY FRIENDS TO READ & SHARE THIS; YOU COULD SAVE A LOVED ONES LIFE BY KNOWING THIS SIMPLE INFORMATION!!! Stroke has a new indicator! They say if you forward this to ten people, you stand a chance of saving one life. Will you send this along? Blood Clots/Stroke - They Now Have a Fourth Indicator, the Tongue: During a BBQ, a woman stumbled and took a little fall - she assured everyone that she was fine (they offered to call paramedics) ...she said she had just tripped over a brick because of her new shoes. They got her cleaned up and got her a new plate of food. While she appeared a bit shaken up, Jane went about enjoying herself the rest of the evening. Jane's husband called later telling everyone that his wife had been taken to the hospital - (at 6:00 PM Jane passed away.) She had suffered a stroke at the BBQ. Had they known how to identify the signs of a stroke, perhaps Jane would be with us today. Some don't die. They end up in a helpless, hopeless condition instead. It only takes a minute to read this. A neurologist says that if he can get to a stroke victim within 3 hours he can totally reverse the effects of a stroke...totally. He said the trick was getting a stroke recognized, diagnosed, and then getting the patient medically cared for within 3 hours, which is tough. >>RECOGNIZING A STROKE<< Thank God for the sense to remember the '3' steps, STR. Read and Learn! Sometimes symptoms of a stroke are difficult to identify. Unfortunately, the lack of awareness spells disaster. The stroke victim may suffer severe brain damage when people nearby fail to recognize the symptoms of a stroke. Now doctors say a bystander can recognize a stroke by asking three simple questions: S *Ask the individual to SMILE. T *Ask the person to TALK and SPEAK A SIMPLE SENTENCE (Coherently) (i.e. Chicken Soup) R *Ask him or her to RAISE BOTH ARMS. If he or she has trouble with ANY ONE of these tasks, call emergency number immediately and describe the symptoms to the dispatcher. New Sign of a Stroke -------- Stick out Your Tongue NOTE: Another 'sign' of a stroke is this: Ask the person to 'stick' out his tongue. If the tongue is 'crooked', if it goes to one side or the other that is also an indication of a stroke. A cardiologist says if everyone who gets this e-mail sends it to 10 people; you can bet that at least one life will be saved. I have done my part. Will you?

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