Thursday, January 31, 2013

Fifth Amendment Right Against Self-Incrimination

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


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.