Chapter 3 Proceedings in Which the Fifth Amendment May Be Asserted

• Library: The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.)

CHAPTER 3 Proceedings in Which the Fifth Amendment May Be Asserted

The Supreme Court has remarked on numerous occasions that the Fifth Amendment "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory," in which the witness reasonably believes the information sought, or discoverable as a result of his testimony, could be used in a subsequent criminal proceeding.

• McCarthy v. Arndstein, 266 U.S. 34, 40 (1924) ("The [Fifth Amendment] privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects, likewise, the owner of goods which may be forfeited in a penal proceeding.") (citation omitted).
• Kastigar v. United States, 406 U.S. 441, 444-45 (1972) ("[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.") (citations omitted).
• Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) ("The [Fifth] Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.") (citation omitted).
• Minnesota v. Murphy, 465 U.S. 420, 426 (1984) ("The Fifth Amendment, in relevant part, provides that no person 'shall be compelled in any criminal case to be a witness against himself.' It has long been held that this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also 'privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'") (quoting Lefkowitz, 414 U.S. at 77).
• United States v. Balsys, 524 U.S. 666, 672 (1998) ("[The Self-Incrimination Clause] 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory,' in which the witness reasonably believes that the information sought, or discoverable as a result of his testimony, could be used in a subsequent state or federal criminal proceeding.") (quoting Kastigar, 406 U.S. at 444-45).

Furthermore, numerous U.S. Supreme Court decisions have allowed parties to litigate disputes arising under the Self-Incrimination Clause not only after a criminal prosecution has been initiated, but also in advance of any such prosecution. These cases recognize that the Fifth Amendment protects not only a right not to have compelled self-incriminating statements used in a criminal case, but a distinct and independent right not to be compelled to make self-incriminatory statements that could be used in a future criminal case.

• Pillsbury Co. v. Conboy, 459 U.S. 248, 256-57 (1983) (Grant of immunity at the earlier criminal trial did not require a witness to testify at his later civil deposition, even when the questions asked at the deposition closely tracked the testimony the witness had previously given in the criminal case under the grant of immunity. Instead, the Court recognized that the witness retained a Fifth Amendment privilege to refuse to answer questions posed at his civil deposition.).
• Garner v. United States, 424 U.S. 648, 653 (1976) ("[T]he privilege protects against the use of compelled statements as well as guarantees the right to remain silent absent immunity.").
• Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52, 57 n.6 (1964) ("The constitutional privilege against self-incrimination has two primary interrelated facets: [t]he Government may not use compulsion to elicit self-incriminating statements . . . and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion.") (citations omitted).

The proposition that the Fifth Amendment protects not only against the use of compelled self-incriminating disclosures at a criminal trial but also against the compelled making of self-incriminating statements is, however, undergoing reexamination. As previously mentioned, in Chavez v. Martinez, 538 U.S. 760, 777 (2003), Martinez was subjected to coercive interrogation while undergoing medical treatment for gunshot wounds. He subsequently brought a claim for violation of his Fifth Amendment privilege against self-incrimination pursuant to 42 U.S.C. § 1983. Despite the fact the coercive interrogation elicited incriminating testimony, Martinez was never charged with a crime. A splintered Court held that a violation of the constitutional right against self-incrimination does not occur until self-incriminating testimony obtained by impermissible coercion has been used against the defendant in a criminal case. The plurality remarked:

Although our cases have permitted the Fifth Amendment's self-incrimination privilege to be asserted in noncriminal cases . . . that does not alter our conclusion that a violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case.

Id. at 770 (internal citations omitted).

Thus, some subsequent decisions have refused to recognize a Fifth Amendment violation when the witness retained the ability to challenge the use of compelled self-incriminating testimony in court.

• United States v. Johnson, 446 F.3d 272, 279-80 (2d Cir. 2006) (because the parolee retained the right to challenge any subsequent use in court of incriminating statements produced by a compelled polygraph examination, he could be required to take the polygraph exam or have his parole revoked).
• Pina v. Vail, No. 08-CV-0511-MJP-JPD, 2009 WL 1320962, at *9 (W.D. Wash. May 11, 2009) (a parolee's Fifth Amendment right was not violated by the requirement that he submit to periodic polygraph testing as a condition of supervised release, in part because he had "not made any showing . . . that he could not challenge the admission of such statements in a future criminal proceeding").
• United States v. Porter, No. 03-CR-0129 (CPS), 2008 WL 117839, at *7 (E.D.N.Y. Jan. 3, 2008) (requirement that a parolee submit to polygraph examinations as a condition of supervised release did not violate his Fifth Amendment rights "because he can challenge the use of any incriminating statements made during the course of the polygraph examination in any court proceeding.") (citation omitted).
• But cf. United States v. Antelope, 395 F.3d 1128, 1130-35 (9th Cir. 2005) (disagreeing with the district court that a probationer's refusal to incriminate himself as part of his sexual offender treatment was not ripe for review until he was subject to a prosecution for additional crimes as a result of his compelled disclosures, and reversing the district court's decision to revoke his supervised release for refusing to submit to sexual offense treatment questioning).

These decisions conflict with prior Supreme Court decisions refusing to leave the validity of a Fifth Amendment assertion to a future judge in a future criminal prosecution. See discussion on pages 58-59.

Assertions of the Fifth Amendment Right Against Self-incrimination in Criminal Proceedings During Custodial Police Interrogation

Several recent Supreme Court decisions have suggested that the core right against compelled self-incrimination protected by the Fifth Amendment does not apply until a person is charged in a court of law.

• United States v. Patane, 542 U.S. 630, 641 (2004) (plurality opinion) ("Potential violations [of the Self-Incrimination Clause] occur, if at all, only upon the admission of [compelled incriminatory] statements into evidence at trial.").
• Chavez v. Martinez, 538 U.S. 760, 766 (2003) (plurality rejected defendant's argument that a "criminal case" encompasses the entire investigatory process, stating that "[i]n our view, a 'criminal case' at the very least requires the initiation of legal proceedings.") (citation omitted).
• United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (stating in dicta that "[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial.") (citations omitted).

Nonetheless, to protect an individual's Fifth Amendment right against compelled self-incrimination in a criminal case, the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), established a safeguard requiring law enforcement officials to give certain warnings to persons in police custody before questioning them. Miranda requires law enforcement officials to inform a suspect being held in custody that he has a right to remain silent, that his statements may be used against him at trial, and that he has the right to an attorney during questioning, including a court-appointed attorney if he cannot afford one. Id. at 478-79. Absent proof that police gave such warnings and a suspect validly waived the rights, incriminating statements obtained during custodial interrogation are inadmissible at trial. Id. at 479.

The Miranda Court was faced with four cases in which law enforcement officials questioned defendants "in a room in which [each] was cut off from the outside world." Id. at 445. Although the Court cited to numerous instances of police brutality toward witnesses undergoing...