Ripeness of self-incrimination clause disputes.

AuthorMannheimer, Michael J. Zydney

Historically, disputes regarding witnesses' claims pursuant to the Self-Incrimination Clause of the Fifth Amendment, (1) regardless of the varying contexts in which they arise, have been resolved at the time each claim is made. Thus, for example, where a witness before a Congressional committee is asked a question she believes calls for an incriminatory response, and the committee disagrees, the witness typically will refuse to answer and the committee can commence a contempt proceeding against her. In such a proceeding, the court will resolve the Self-Incrimination Clause dispute because the witness' claim of the constitutional privilege, if valid, will provide her a complete defense to the contempt charge. Similarly, a person who suffers a legal detriment because he refuses to provide incriminating information to the government in a less formalized setting will often bring an action challenging the government's right to impose the detriment upon him because it amounts to compulsion to incriminate himself. Again, the court will resolve the Self-Incrimination Clause dispute to determine whether the invoker's (2) rights have been violated.

Yet, three Terms ago, in Chavez v. Martinez, a majority of the Supreme Court held that the Self-Incrimination Clause is not violated unless and until a person's compelled self-incriminatory words are actually used against him in a criminal judicial proceeding. (3) This throws into question the historic practice of addressing Self-Incrimination Clause issues without regard for the procedural posture of the particular case. If a violation of the Self-Incrimination Clause is not complete until a person has been required to be a "witness against himself" "in [a] criminal case," then, arguably, neither of the disputes mentioned above should be decided at all because neither is ripe for review.

The Court has not yet come to terms with a ripeness requirement with respect to claims of the constitutional privilege against self-incrimination. For example, in the Term before Chavez was decided, the Court considered the claim of a state prisoner that by requiring his admission of guilt in a prison program for sex offenders, on pain of expulsion from the program and the imposition of less desirable conditions of confinement, the State violated his constitutional privilege against self-incrimination. (4) Though the Court ultimately rejected the claim, it did so on the ground that the prisoner had not experienced compulsion sufficient to make out a violation of the Self-Incrimination Clause. (5) None of the nine Members of the Court considered the possibility that the claim should have been rejected because the plaintiff had never been a "witness against himself" "in [a] criminal case," and therefore the claim was not ripe for review. Likewise, subsequent to Chavez, in Hiibel v. Sixth Judicial District Court, the Court addressed the constitutionality of a Nevada statute requiring individuals to identify themselves when asked to do so by the police. (6) The Court rejected the claim that the statute violated the Self-Incrimination Clause, reasoning that mere disclosure of one's name ordinarily "present[s] no reasonable danger of incrimination." (7) The dissenters (8) strongly disagreed, arguing that "[a] person's identity obviously bears informational and incriminating worth." (9) Again, however, none of the Justices considered the possibility that, since the defendant had never been a "witness against himself" "in [a] criminal case," the issue was unripe pursuant to the principles enunciated in Chavez.

Since the Burger Court era, the Court has been quite stringent in enforcing the requirement that any dispute (10) be ripe for review in order to satisfy the "case or controversy" requirement of Article III of the Constitution. (11) In the Self-Incrimination Clause context, however, the Court has failed to perceive its own gradual slippage from deciding concrete cases to deciding those in which the actual danger of a violation of the Clause, properly understood, is remote at best. This slippage is largely a result of the Court's failure to distinguish between claims of the constitutional privilege against self-incrimination litigated after a criminal conviction, on the one hand, from those litigated in the investigatory stage of a criminal matter and those arising in contexts wholly unrelated to criminal matters, on the other.

This article argues that, in light of the renewed understanding of the Self-Incrimination Clause exemplified by Chavez, the federal courts should refuse to address disputes over the validity of claims of the constitutional privilege against self-incrimination unless there is at least an imminent danger that a person's words will be used against her in a criminal judicial proceeding. (12) Part I examines the elementary rules that govern a claim of the constitutional privilege against self-incrimination in all varieties of settings, ranging from those in which the invoker of the privilege has already had her words used against her in a criminal proceeding, to those in which there is not even a hint that this will ever occur. Part II discusses Chavez v. Martinez, which, for the first time, held that a Self-Incrimination Clause violation occurs only if and when a person's compelled statements are used against her in a criminal proceeding, and then discusses the conflict between Chavez and the courts' historic practice of addressing disputes over claims of the constitutional privilege against self-incrimination before a criminal prosecution is initiated. Part III examines the ripeness doctrine in general terms, and then argues that the Court must take the ripeness requirement more seriously in Self-Incrimination Clause cases. This Part re-examines the various types of Self-Incrimination Clause disputes with ripeness in mind and proposes a framework for deciding whether each type presents a ripe controversy. It argues that the Self-Incrimination Clause is similar to its Fifth Amendment neighbor, the Takings Clause, in this respect: there is no absolute right to silence pursuant to the Self-Incrimination Clause just as there is no absolute right to property pursuant to the Takings Clause. Thus, an individual faced with the decision whether to incriminate himself or herself is in the same position as one whose property has been taken. Each must await further government action--the initiation of criminal proceedings in the one case and the refusal to pay just compensation in the other--before the issue is ripe for review.

  1. SELF-INCRIMINATION CLAUSE JURISPRUDENCE

    The Supreme Court's jurisprudence on the Self-Incrimination Clause has addressed claims that arise in a variety of contexts. On one end of the spectrum, the Court has addressed claims of the constitutional privilege against self-incrimination litigated after a criminal conviction of the person whose compelled statements have been used against him or her at trial. At the other end, the Court has addressed Self-Incrimination Clause disputes arising in contexts where the threat of criminal prosecution is, at best, remote. The Court has consistently ignored these distinctions and resolved these different types of disputes by applying principles universally applicable to all, on the assumption that the Clause is violated at the time that self-incriminating statements are compelled.

    1. THE VARYING CONTEXTS IN WHICH SELF-INCRIMINATION CLAUSE DISPUTES ARE LITIGATED

      The Supreme Court has addressed disputes regarding the Self-Incrimination Clause both before and after a criminal prosecution has taken place. In both categories of cases, the dispute can arise in a variety of settings: before a grand jury; before a Congressional committee; before an administrative agency or other analogous governmental body; and in a civil action.

      1. After the Initiation of a Criminal Prosecution

        Even if one knew nothing about Self-Incrimination Clause jurisprudence, one could easily guess that the Supreme Court would have had occasion to address Self-Incrimination Clause disputes after a criminal prosecution and conviction. The core of the Self-Incrimination Clause concerns the defendant who claims to have been "compelled ... to be a witness against himself," leading to his conviction of a criminal charge, in violation of the Clause. Only in very rare cases does the compulsion itself occur at trial, since the core meaning of the Clause has been clear to actors in the criminal justice system for some time: no defendant can be required to testify at his or her own criminal trial. Thus, the compulsion and the "witnessing" typically occur at two different times, the former prior to trial and the latter at trial. One way in which the compulsion does occur at trial is where the government does not directly force the defendant to testify, but indirectly pressures him to do so by commenting on his silence at trial, making the decision to remain silent "costly." (13)

        More often, the purported compulsion will have occurred before trial but the Self-Incrimination Clause dispute will not have been fully litigated until after a prosecution has been initiated. For example, the putative defendant will have made disclosures to a state or federal grand jury, and a prosecutor will attempt to use those disclosures against her at a criminal trial. The Supreme Court has long addressed Self-Incrimination Clause disputes arising in this way. (14) Sometimes, the dispute arises because the putative defendant has arguably been compelled to provide disclosures in a civil action and those disclosure are later used to prosecute her for a crime. (15) In other cases, the dispute arises because the putative defendant has arguably been compelled to make disclosures before an administrative agency to which she has been subpoenaed, and, again, a prosecutor then seeks to use the evidence against her in a criminal prosecution. (16) And in some cases, an arguably compelled...

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