6.5 Nature of the Privilege

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

6.5 NATURE OF THE PRIVILEGE

6.501 In General. The privilege against self-incrimination protects against compulsory, testimonial incrimination. Three questions must be addressed to determine whether the privilege is applicable to a given situation: (i) whether there is compulsion; (ii) whether the response sought is "testimonial"; and (iii) whether the response sought is potentially "incriminatory."

6.502 Compulsion. Because of the phrasing of the Fifth Amend-ment, ³⁷ the privilege against self-incrimination applies only to circumstances

[Page 297]

in which compulsion is present. The intent of the amendment was to allow the citizen to resist governmental pressures. A person may always choose to voluntarily disclose incriminatory information ³⁸ and, where a free choice exists, the privilege is inapplicable.

The definition of compulsion is not, however, a clear one. In addition to such obvious examples as testimony compelled by court order or threat of contempt, the privilege is applicable to custodial police interrogation, because that interrogation has been deemed to be "coercive" for purposes of the privilege, ³⁹ and to situations in which governmental employees are threatened with discharge if the privilege is not waived. ⁴⁰ In contradistinction, however, the privilege is inapplicable when a jurisdiction requires the defense to disclose details of a proposed alibi defense, ⁴¹ because the defendant has a voluntary choice whether to raise that defense. In addition, there is no prohibited compulsion when the government requires a driver stopped for drunk driving to choose between either submitting to a blood or breath test or having the refusal used against him or her at trial and having his or her driving privileges revoked. ⁴² Similar reasoning allowed the government to use a defendant's failure to perform a field sobriety test against him or her. ⁴³ However, the Virginia Supreme Court has held that refusal to perform a field sobriety test may be considered along with all the other facts in a case, but no specific inference of the accused's guilty knowledge may be made from that refusal. ⁴⁴ Finally, there is no prohibited compulsion when a judge offers leniency in sentencing in return for potentially incriminating testimony. ⁴⁵

Once an accused has invoked the right to counsel under the Fifth Amendment, police may not resume interrogation unless the accused initiates further conversations with them, and only if those communications

[Page 298]

result in the accused waiving the right to counsel. ⁴⁶ The same is not true when the defendant is not in custody.

The police do not need to engage in express questioning for their exchange with the defendant to constitute an interrogation. ⁴⁷ Once a defendant has invoked his or her Miranda rights, even some measure of compulsion by the police such as, for example, words or actions that they should have known would evoke a suspect's incriminating response, may be viewed as the functional equivalent of interrogation and, depending on the context, unacceptable. ⁴⁸

In Edwards v. Arizona, ⁴⁹ the U.S. Supreme Court had previously found that there is a presumption of involuntariness if the police reinitiated contact after the accused had requested counsel unless counsel was made available or the accused asked to continue the interview. However, in Maryland v. Shatzer, ⁵⁰ the Supreme Court distinguished Edwards (where the suspect had been in continuous police custody) and held that a 14-day break in custody provided enough time for a suspect to recover from any coercive effects of the prior custodial questioning, allowing the police to reinitiate contact and rendering the Edwards presumption inapplicable.

6.503 Testimonial Communication. The privilege against self-incrimination protects "an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." ⁵¹ Accordingly, handwriting samples, ⁵² voice samples, ⁵³ and blood samples ⁵⁴ have been held to be non-testimonial and not protected by the privilege. Similarly, being required "to submit to fingerprinting,

[Page 299]

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" are not within the scope of the privilege. ⁵⁵ Involuntary polygraph testing may, however, be protected by the privilege. ⁵⁶ In order to be testimonial, an accused's communication must itself explicitly or implicitly relate a factual assertion or disclose information. ⁵⁷ The privilege, however, clearly extends to verbal and non-verbal conduct. ⁵⁸ Normally, verbal statements, written or oral, will convey information or assert facts. However, a person may be required to speak for identification purposes ⁵⁹ or write for handwriting comparison purposes. ⁶⁰

A significant question about the scope of the privilege against self-incrimination concerns the application of the privilege to documents. Although the privilege had been held to apply to "private books and papers," ⁶¹ the United States Supreme Court has made it clear that the privilege is inapplicable to personal business papers. ⁶² The Court's rationale was that the privilege protects an individual from "producing the evidence but not from its production" ⁶³ and that documents voluntarily prepared by the defendant are not within the privilege. ⁶⁴ In effect, the Court rejected its prior holding in Boyd v. United States ⁶⁵ that the privilege's intent was to protect an individual against disclosure of private thought or communications in the form of private documents. Thus, although the Court's opinions have not yet reached such items as personal letters and private diaries, it appears that the Fifth

[Page 300]

Amendment privilege would be held inapplicable to them. ⁶⁶ The Virginia Court of Appeals held that seizure of a private diary under the authority of a valid search warrant does not violate the Fifth Amendment privilege against self-incrimination. In Moyer v. Commonwealth, ⁶⁷ the court ruled that "private papers" enjoy no special protection under the amendment.

Despite these decisions based on the federal Constitution, there is a possible argument that the Virginia Constitution protects documents. While the federal Constitution prohibits forcing a defendant "to be a witness against himself," Article I, Section 8 of the Virginia Constitution uses the words "to give evidence against himself," so perhaps the protection afforded is broader. In Rees v. Commonwealth ⁶⁸ the Virginia Supreme Court dealt with the legality of a seizure of papers from a suitcase. Citing Article I, Section 8 of the Virginia Constitution for the proposition that warrants may not be issued for papers of an evidentiary nature, the court expressly held that the papers in the case were protected by the privilege against self-incrimination granted by the Virginia Constitution. Absent the court's express language, it would be clear from the text of the opinion that the court was relying on federal precedents that have been modified or overruled. Thus, the court may have been ascribing the presumed federal interpretation of the federal privilege to the state constitutional privilege, in which case Rees now has no precedential value. In other decisions, the courts have held that the provisions of the Virginia Constitution are coextensive with the Fifth Amendment. ⁶⁹

6.504 Incrimination.

A. In General. Although the word "incrimination" is not found in the Fifth Amendment, the privilege has been equated with a general protection against compelled testimonial self-incrimination. ⁷⁰ Fifth Amendment protection is unavailable when disclosure of information presents no reasonable danger of incrimination. Thus, protection is denied to a person who refuses to produce identification when the refusal is not based on any articulated real and appreciable fear that the identification would be used to incriminate the person or furnish a link in the chain of evidence in a prosecution. ⁷...