§ 16.2 Self-incrimination

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 16.2 SELF-INCRIMINATION

§ 16.2-1 Source of Privilege against Self-Incrimination

The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself [or herself]." The Fifth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Dickerson v. United States, 530 US 428, 434, 120 S Ct 2326, 147 L Ed 2d 405 (2000) (citing Malloy v. Hogan, 378 US 1, 6-11, 84 S Ct 1489, 12 L Ed 2d 653 (1964)).

Article I, section 12, of the Oregon Constitution similarly protects the right of a person to remain silent and provides that "[n]o person shall be . . . compelled in any criminal prosecution to testify against himself [or herself]." In addition to constitutional protections, certain Oregon statutes protect a defendant's right against compelled self-incrimination and place limits on the uses that can be made of a defendant's statements.

The United States Supreme Court has explained the policy underlying the privilege against compelled self-incrimination as follows:

By its very nature, the privilege is an intimate and personal one. It respects a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation. Historically, the privilege sprang from an abhorrence of governmental assault against the single individual accused of crime and the temptation on the part of the State to resort to the expedient of compelling incriminating evidence from one's own mouth.

Couch v. United States, 409 US 322, 327, 93 S Ct 611, 34 L Ed 2d 548 (1973).

§ 16.2-2 Scope of Privilege against Compelled Self-Incrimination

§ 16.2-2(a) When Privilege against Self-Incrimination Is Available

The privilege against self-incrimination prohibits the government from compelling any person to disclose information of a testimonial nature that might directly or indirectly subject the person to criminal liability. Doe v. United States, 487 US 201, 212, 108 S Ct 2341, 101 L Ed 2d 184 (1988). This prohibition prevents the government from compelling testimony in any proceeding, civil or criminal, formal or informal, before administrative, legislative, or judicial bodies, when a person's answers may tend to incriminate the person in future criminal proceedings. See Lefkowitz v. Cunningham, 431 US 801, 805-06, 97 S Ct 2132, 53 L Ed 2d 1 (1977); Maness v. Meyers, 419 US 449, 463-64, 95 S Ct 584, 42 L Ed 2d 574 (1975); Lefkowitz v. Turley, 414 US 70, 77, 94 S Ct 316, 38 L Ed 2d 274 (1973). See also State ex rel. Leopold v. McCallister, 106 Or App 324, 328, 807 P2d 325 (1991) (in a civil contempt proceeding for nonsupport, the defendant could assert the privilege against self-incrimination because his testimony could subject him to criminal prosecution). The protection against compelled self-incrimination also extends to out-of-court situations, such as criminal investigations, in which a person may be compelled to make incriminating statements.

In sum, the protection applies in any instance in which the person asserting the privilege demonstrates the existence of the following three elements: (1) compulsion by the government (2) to make a testimonial communication (3) that is incriminating. See § 16.2-2(a)(1) to § 16.2-2(a)(3) (discussing these elements).

§ 16.2-2(a)(1) Compulsion by Government

Compulsion is a key component of the privilege against self-incrimination. See State v. Davis, 350 Or 440, 256 P3d 1075 (2011) (historical analysis of the compulsion requirement). No communication made in the absence of compulsion by the government is protected by the privilege. The privilege protects potential defendants from being legally, physically, or morally compelled to make incriminating communications. Fisher v. United States, 425 US 391, 397, 96 S Ct 1569, 48 L Ed 2d 39 (1976) ("The Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of 'physical or moral compulsion' exerted on the person asserting the privilege."). Some forms of compulsion are clear, such as formally requiring a person to testify under a subpoena, whereas other forms are informal and less obvious, such as the compelling nature of custodial interrogation. See Pennsylvania v. Muniz, 496 US 582, 589, 110 S Ct 2638, 110 L Ed 2d 528 (1990) ("the privilege against self-incrimination protects individuals not only from legal compulsion to testify in a criminal courtroom but also from 'informal compulsion exerted by law enforcement officers during in-custody questioning'" (quoting Miranda v. Arizona, 384 US 436, 461, 86 S Ct 1602, 16 L Ed 2d 694 (1966))).

NOTE

In the absence of inherently compelling circumstances, like custodial interrogation, courts generally will not consider a statement compelled unless the person was required to make the statement after asserting the privilege. See § 16.2-3 (manner of invoking privilege against self-incrimination). Also, the privilege offers no protection against compulsion by private persons. See State v. McNeely, 330 Or 457, 461, 8 P3d 212, cert den, 531 US 1055 (2000) (finding no compulsion because no state officer "initiated, planned, controlled, or supported [the cellmate's] activities in obtaining information from defendant about [the] case"). See § 16.1-6 (questioning by private citizens).

The privilege proscribes coercing persons into making incriminating statements by forcing them to either incriminate themselves or face some penalty for remaining silent. For example, in Garrity v. New Jersey, 385 US 493, 87 S Ct 616, 17 L Ed 2d 562 (1967), the state required police officers to either testify in a corruption probe or be fired. The United States Supreme Court held that because the choice was between self-incrimination and job forfeiture, the procedure was impermissibly coercive. Garrity, 385 US at 497-98. See Lefkowitz v. Cunningham, 431 US 801, 805-08, 97 S Ct 2132, 53 LEd2d 1 (1977) (prohibited compulsion existed when a person's refusal to testify could result in loss of the right to run for office and to participate in political associations); Lefkowitz v. Turley, 414 US 70, 82-83, 94 S Ct 316, 38 L Ed 2d 274 (1973) (prohibited compulsion existed when an independent contractor had to choose between losing government contracts and invoking the privilege against self-incrimination); Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation of City of New York, 392 US 280, 283-84, 88 S Ct 1917, 20 L Ed 2d 1089 (1968) (the prospect of losing employment for invoking the privilege was sufficiently coercive to violate the privilege); Spevack v. Klein, 385 US 511, 514, 87 S Ct 625, 17 L Ed 2d 574 (1967) (a lawyer may not be disbarred for invoking the privilege against self-incrimination).

On the other hand, requiring a person to make a choice is not always impermissible. For instance, allowing an inmate to voluntarily participate in an interview, as part of the state clemency process, without immunity for any statements made does not violate the inmate's Fifth Amendment right against self-incrimination. Ohio Adult Parole Authority v. Woodard, 523 US 272, 286, 118 S Ct 1244, 140 L Ed 2d 387 (1998). Similarly, requiring sex-offender inmates to admit their offending behavior as part of a rehabilitation program is not compelling in the constitutional sense, even though refusal to participate results in a transfer to less desirable housing and the loss of privileges. McKune v. Lile, 536 US 24, 29, 122 S Ct 2017, 153 L Ed 2d 47 (2002). Offering a driver the choice of taking a blood-alcohol test or having the driver's refusal used against the driver is not impermissibly coercive. South Dakota v. Neville, 459 US 553, 563-64, 103 S Ct 916, 74 L Ed 2d 748 (1983). In State v. Graf, 316 Or 544, 550-51, 853 P2d 277 (1993), the court held that an Oregon administrative rule that permitted, but did not require, an employee to appear and offer mitigating or explanatory evidence in a pretermination employment hearing was not coercive, despite the employee's view that he was compelled to either appear at the hearing and rebut the charges against him or remain silent and be dismissed.

COMMENT

States have more freedom to force choices on inmates than they do to force choices on the public. In McKune, 536 US at 37, the Supreme Court held that in deciding whether a statement of an inmate is compelled, courts "must consider the significant restraints already inherent in prison life and the State's own vital interests in rehabilitation goals and procedures within the prison system."

§ 16.2-2(a)(2) Testimonial Communication

A person may not be compelled to make a communication that is testimonial in nature. To be testimonial, "an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Doe v. United States, 487 US 201, 210, 108 S Ct 2341, 101 L Ed 2d 184 (1988). As a general rule, most verbal communications are testimonial and cannot be compelled.

Conversely, merely requiring a person to be the source of "real or physical evidence" does not implicate the privilege. Schmerber v. California, 384 US 757, 764, 86 S Ct 1826, 16 L Ed 2d 908 (1966). For instance, a person may be compelled to engage in certain acts or to disclose certain characteristics. Schmerber, 384 US at 764 (noting that "both federal and state courts have usually held that [the privilege] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture"); Holt v. United States, 218 US 245, 252-53, 31 S Ct 2, 54 L Ed 1021 (1910).

The distinction between real or physical evidence and testimonial evidence often is not clear, however, and frequently requires a fact-based inquiry. Schmerber, 384 US at 764. The following list provides examples of testimonial and...