General Applicability of the Privilege
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III. General applicability of the privilege
The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . ." There are four components to the Fifth Amendment privilege against compelled self-incrimination.
A. Component #l—Compelled
The first component is that the Fifth Amendment prohibits only a "genuine compulsion of testimony." United States v. Washington, 431 U.S. 181, 187 (1977) (quoting Michigan v. Tucker, 417 U.S. 433, 440 (1974)). In Ross v. State, 78 Md. App. 275 (1989), the Court of Special Appeals stated: "The core purpose of the privilege is not to protect a defendant against self-incrimination generally, nor even to guard against foolish and ill-advised incrimination; it is to shield a defendant against governmental coercion." Id. at 279.
In Ciriago v. State, 57 Md. App. 563 (1984), the Court of Special Appeals stated: "There is no privilege against inadvertent self-incrimination or even stupid self-incrimination, but only against compelled self-incrimination." Id. at 574. In Cummings v. State, 27 Md. App. 361 (1975), the Court of Special Appeals stated: "There is not—under the Fifth Amendment to the Federal Constitution or under Article 22 of the Maryland Declaration of Rights—any such thing as a right against self-incrimination. There is only a right against compelled self-incrimination." Id. at 363.
B. Component #2—Criminal proceeding or that which may become a criminal proceeding
The second component is that the Fifth Amendment prohibition against compelled self-incrimination applies only in what is, or what may become, a criminal case. See Chavez v. Martinez, 538 U.S. 760, 770 (2003). In Lefkowitz v. Turley, 414 U.S. 70 (1973), the Supreme Court stated:
[The Fifth] Amendment not only protects the individual against being involuntarily called as a witness in a criminal proceeding 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.
Id. at 77. In Phillips v. Allstate Indemnity Co., 156 Md. App. 729 (2004), the Court of Special Appeals stated: "The Fifth Amendment privilege against self-incrimination may be asserted by a party or a witness in civil proceedings, 'not only at trial, but at the discovery stage as well.'" Id. at 742 (quoting Kramer v. Levitt, 79 Md. App. 575, 582 (1989)).
C. Component #3—Being a witness
The third component is that the Fifth Amendment prohibition against compelled self-incrimination applies only to being a "witness." In United States v. Hubbell, 530 U.S. 27 (2000), the Supreme Court concurring opinion stated:
This Court has not always taken the approach to the Fifth Amendment that we follow today. The first case interpreting the Self-Incrimination Clause—Boyd v. United States—was decided, though not explicitly, in accordance with the understanding that "witness" means one who gives evidence. In Boyd, this Court unanimously held that the Fifth Amendment protects a defendant against compelled production of books and papers. And the Court linked its interpretation of the Fifth Amendment to the common-law understanding of the self-incrimination privilege.
But this Court's decision in Fisher v. United States, 425 U.S. 391 (1976), rejected this understanding, permitting the Government to force a person to furnish incriminating physical evidence and protecting only "testimonial" aspects of that transfer.
Id. at 55-56 (Thomas, J., concurring) (some internal citations omitted).
D. Component #4—Against oneself, i.e., self-incrimination, in one's individual capacity
The fourth component is that the Fifth Amendment prohibition against compelled self-incrimination applies only to being compelled to be a witness against oneself. In Braswell v. United States, 487 U.S. 99 (1988), the Supreme Court stated: "[F]or the purposes of the Fifth Amendment, corporations and other collective entities are treated differently from individuals." Id. at 104. Md. Decl. of Rights art. 22 provides "[t]hat no man ought to be compelled to give evidence against himself in a criminal case."
E. No violation of the Fifth Amendment unless statements are introduced at trial
A violation of the Fifth Amendment privilege against compelled self-incrimination occurs if the defendant's compelled statement is used at trial. In Chavez, 538 U.S. 760, the defendant sued police under 42 U.S.C. § 1983 (the federal civil rights act), alleging that his Fifth Amendment rights were violated when police, without complying with Miranda, questioned him in a hospital after he was shot in an altercation with police. The Ninth Circuit held that the defendant's Fifth Amendment rights were violated, even though his statements were not used at trial and charges were not filed against him. The Supreme Court reversed, holding that a violation of the Fifth Amendment occurs only if the compelled statements are used at trial, stating:
Although [the defendant] contends that the meaning of "criminal case" should encompass the entire criminal investigatory process, including police interrogations, we disagree. In our view, a "criminal case" at the very least requires the initiation of legal proceedings. We need not decide today the precise moment when a "criminal case" commences; it is enough to say that police questioning does not constitute a "case" any more that a private investigator's pre-complaint activities constitute a "civil case." Statements compelled by police interrogations of course may not be used against a defendant at trial, but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs.
Here, [the defendant] was never made to be a "witness" against himself in violation of the Fifth Amendment's Self-Incrimination Clause because his statements were never admitted as testimony against him in a criminal case. Nor was he ever placed under oath and exposed to the cruel trilemma of self-accusation, perjury, or contempt. The text of the Self-Incrimination Clause simply cannot support the Ninth Circuit's view that the mere use of compulsive questioning, without more, violates the Constitution.
Id. at 767 (internal citations and quotations omitted).
F. Custody versus non-custody
The Fifth Amendment privilege against compelled self-incrimination applies in both custodial and non-custodial contexts. See Brogan v. United States, 522 U.S. 398 (1998). In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court established procedural safeguards for obtaining statements from individuals when they are subjected to custodial interrogation. The Court stated:
[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the Defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person had been taken into custody or otherwise deprived of his freedom of action in any significant way.
Id. at 444.
G. Is a proceeding a "criminal" proceeding or a "civil" proceeding for purposes of the privilege against compelled self-incrimination?
There is no prohibition under the Fifth Amendment or Article 22 against compelling testimony in a civil case, provided the information obtained cannot be used in a subsequent criminal case or lead to evidence that could be used in a criminal case. Consequently, if compelled information could not be used in a criminal prosecution, and cannot be used to discover evidence that could be used in a criminal prosecution, the privilege against compelled self-incrimination does not apply because there is no risk that the compelled testimony will be used in a criminal case.
In Allen v. Illinois, 478 U.S. 364, 374 (1986), the Supreme Court held that a commitment proceeding, under a sexually violent predator statute, was a civil proceeding because its aim was treatment and not punishment...
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