Chapter 5 How the Right May Be Asserted

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

CHAPTER 5 How the Right May Be Asserted

The Supreme Court has repeatedly indicated, and in its most recent cases stressed, that the privilege against self-incrimination is not self-executing and that the witness must make some affirmative declaration or objection at the time the incriminating response is called for to invoke its protection. Subject to the exception of when the government attaches a penalty to the assertion of the privilege itself, the witness must claim the privilege "unequivocally" to preserve a claim that the right against self-incrimination has been violated. Thus, in Garner v. United States, 424 U.S. 648 (1976), in which the Supreme Court upheld the admission into evidence of disclosures made on the defendant's tax return that he was a professional gambler, the Court remarked:

Unless a witness objects, a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make a timely assertion of the privilege . . . [S]ince Garner made disclosures instead of claiming the privilege on his tax returns, [h]e . . . was foreclosed from invoking the privilege when such information was later introduced as evidence against him in a criminal prosecution.

Id. at 655, 665.

Similarly, in Minnesota v. Murphy, 465 U.S. 420 (1984), the Court remarked:

The [Fifth] Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been "compelled" within the meaning of the Amendment.

Id. at 427 (quoting United States v. Monia, 317 U.S. 424, 427 (1943)).

For instance, if the witness simply refuses to answer the question without giving a reason, the witness is subject to punishment for contempt, regardless of whether a proper claim of privilege would have been valid. As the Supreme Court has stated in the congressional investigation context, "if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question." Quinn v. United States, 349 U.S. 155, 164-65 (1955).

The requirement that the witness claim the privilege in order to preserve the claim that his incriminating statements were compelled was most recently expressed in Salinas v. Texas, 133 S. Ct. 2174 (2013), in which the Supreme Court held that the Fifth Amendment does not protect a witness's silence during a voluntary non-custodial police interview from being used against him in a criminal prosecution. Salinas was a possible witness to a double murder, and he answered police questions both at his home and later at the police station, where he agreed to go for further questioning. At one point, police asked him if the shotgun shells recovered from the crime scene would match the shotgun he handed over to police from his house, at which point Salinas remained silent, looked down at the floor, shuffled his feet, and bit his lip. He later answered other questions and left the police station. After Salinas was charged with double murder, the prosecution introduced evidence in its case in chief of Salinas's silence and demeanor to the police questions about the shell casings and argued it was evidence of guilt.

The Supreme Court held that because Salinas did not unequivocally invoke his privilege against self-incrimination during the voluntary police interview, he had no right to have his silence excluded from being used against him at trial. The plurality reaffirmed the principle that "a witness who desires [the protection of the privilege] must claim it." Id. at 2178 (citations omitted). The plurality further held that the Fifth Amendment does not establish an unqualified right to remain silent and, absent certain exceptions where a witness was excused from affirmatively asserting the privilege—circumstances where the cost of silence is so great as to be coercive, silence was generally not a substitute for expressly invoking the privilege.

While the witness must claim the privilege against self-incrimination, there is no "ritualistic formula or talismanic phrase" necessary to properly invoke the privilege. Emspak v. United States, 349 U.S. 190, 194 (1955). In ruling on the adequacy of Fifth Amendment assertions made by Emspak before a congressional committee, the Supreme Court remarked, "[A]ll that is necessary is an objection stated in language that a committee may reasonably be expected to understand as an attempt to invoke the privilege." Id. See also Davis v. United States, 512 U.S. 452, 459 (1994) (noting that while "a suspect need not speak with the discrimination of an Oxford don," he must make a statement that a reasonable police officer would understand to be a request for an attorney in order to invoke his Miranda right to...