Self Incrimination Balance Test

SELF-INCRIMINATION: RIGHT OR PRIVILEGE?

The Fifth Amendment clause which reads “no person shall be compelled to be a witness against himself in any criminal case” bears a striking resemblance to the old phrase “nemo tenetur seipsum accusare” (no man is bound to accuse himself), but from a historical as well as contemporary standpoint, this has been easier said than done. Over the years, interpretation of this clause has resulted in expansion and contraction of this supposed (fundamental fairness) right, but given that the Supreme Court has not yet articulated its real meaning, it is perhaps best seen as a privilege, albeit a very broad privilege (one that protects not only direct answers to questions, but anything that would furnish a link in the chain of evidence needed to prosecute).

First of all, the privilege against self-incrimination is a personal one. It applies to individual human beings only. A corporation cannot “plead the Fifth” in order to keep quiet. Secondly, it only applies in criminal cases. A witness cannot keep silent or withhold information in civil proceedings (which are not criminal in nature). Thirdly, it only applies in cases where the phenomenon of “compulsion” is present. This is similar to the Kastigar standard (Kastigar v. U.S. 1972). In order for something to be incriminating, it must not just reveal criminal activity, but produce the real likelihood or risk of imprisonment. Likewise, something is compelled only if there is a risk of imprisonment for refusal to testify or produce documents. Finally, the privilege preserves some interesting features of the American adversarial system. When a defendant refuses to testify in their own trial, neither the prosecutor nor the judge can make any adverse comments about it (indeed, the jury must also be cautioned not to make any undue inferences), unless, of course, the defense opens the door to it by commenting upon it in closing arguments.

The study of self-incrimination law is the study of a balancing test with no name. It is fairly easy to decipher the following elements of this test:

On the one hand, the right of government to compel evidence has practical roots. No crimes would be solved, and no trials would be held, if the justice system operated purely on a voluntary basis of cooperative, come-as-you-are, walks-ins only basis. There must be some equivalent of the oath ex officio even in the most democratic of societies in order to compel essential information, appearances, testimony, and evidence. In our society, this is accomplished through the power of SUBPOENA (technically called subpoena ad testificatum but shortened to subpoena, and one to compel documents is called a subpoena duces tecum). This power is intended to make it the duty of all persons to appear and testify. Statutes regulate their form, issuance, and service, but generally, they are issued by the clerk, a judge, a magistrate, or a party’s attorney. A subpoena duces tecum is often blank and filled out by the party. Subpoenas can be delivered in person, by mail, or by telephone.

Another tool the government has is the power of IMMUNITY which has deep roots in American jurisprudence in recognizing the practical value of not prosecuting certain individuals who have important information to give but who are nonetheless implicated in the crime themselves. There are two types of immunity: transactional immunity which clears a person forever; and use immunity which clears a person from everything except independent evidence of having committed a crime. People immunized at the federal level are automatically immunized at the state level, and vice-versa, if derivative use immunity is granted. Accomplices (small fish) are often given immunity in order to convict the core criminals (big fish). If someone enters the WITNESS PROTECTION PROGRAM, they are given between $1500 and $2000 dollars a month, living expenses. They are given $5000 dollars to buy a car. They are given $6000 dollars for furniture. Their medical, dental, and most everything else is paid. It’s another tool used to keep people in line in case they are needed to testify in something else, despite rules which prohibit testifying again.

On the other hand, the right of all citizens to be protected from undue government intrusion, intervention, and coercion in their lives is paramount. According to the Jackson rule (Michigan v. Jackson 1986), nobody can waive their 5th Amendment rights if they have an attorney on retainer or have invoked their right to an attorney in clear, unequivocal terms. And, citizens have the right of PRIVILEGE. By statute, certain relationships are sacrosanct and confidential, including husband-wife communications, attorney-client, physician-patient. North Carolina does not recognize an accountant-client nor a reporter-source privilege. The Court has for the most part, however, adopted a literalist interpretation of 5th Amendment safeguards. The word “witness” (in no person shall be compelled to be a witness…) is interpreted strictly as safeguarding oral testimony only. The person’s bodily evidence can and will be used against them. Also, there is the controversial “Contempt of Court” charge, which is one way to enforce a subpoena along with fees and other penalties. Criminal contempt is willful disobedience, resistance, or interference with a court’s lawful process, order, or directive. In North Carolina, it carries a penalty of 30 days imprisonment and/or $500 fine. Civil contempt carries an indefinite period of imprisonment (as long as the civil contempt continues). However, it’s the things that do NOT carry self-incrimination protection that are more important to study:

THINGS THAT DO NOT CARRY A SELF-INCRIMINATION PROTECTION:

• The use of one’s body to incriminate one’s self (includes: Appearance Evidence, where no bodily surface is penetrated and no biological materials removed)
• Invasion of one’s body to obtain evidence (includes: Bodily Evidence, where the surface is penetrated, X-rayed, scraped, poked, prodded, or pumped)
• View of private parts (includes: Strip Searches and Body Cavity Searches, which we’ll talk about later)
• Voice characteristics (includes: Voiceprints and/or lineup compulsions “Your money or your life”)

It is important to note that Appearance Evidence has zero (or none) 5th Amendment protection. Bodily evidence will trigger the balancing test, and the right of government to know must be balanced with the right of individual privacy. Much of this kind of evidence is incriminating physical evidence: footprints, fingerprints, blood samples, DNA, hair, saliva, breath, voice, removal of a bullet, a diary, and records.

Both invasion of one’s body and Body Cavity Searches involve the invasiveness standard, and this is again, an example of a balancing test. The grounds for conducting any of these involve the following factors, taken from two important cases: Schmerber v. California 384 U.S. 757 (1966) and Winston v. Lee (1975). In Schmerber, the Court had no problem in drawing a blood sample from a driver who survived his own car crash, and in Winston, the Court ruled that surgery to remove a bullet lodged in a bone was too invasive.

The difference between strip searches and body cavity searches can be summarized as: