Section 18 CRIMES - EVIDENCE AGAINST ONE'S SELF-JEOPARDY.

• Jurisdiction: Colorado

Section 18. Crimes - evidence against one's self-jeopardy.

No person shall be compelled to testify against himself in a criminal case nor shall any person be twice put in jeopardy for the same offense. If the jury disagree, or if the judgment be arrested after the verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.

Source: Entire article added, effective August 1, 1876, see L. 1877, p. 31.

Editor's note: (1) Compare Kirschwing v. Farrar, 114 Colo. 421, 166 P.2d 154 (1946) (civil case, blood test obtained while unconscious); Lewis v. People, 115 Colo. 435, 174 P.2d 736 (1946) (civil case, void telephone company identification); Hanlon v. Woodhouse, 113 Colo. 504, 160 P.2d 998 (1945) (civil case).

(2) For successive indictments and trials in federal and state courts on the same offense, compare Malloy v. Hogan, 378 U.S. 1, 12 L. Ed, 653, 84 S.Ct. 1489 (1964) (referee investigation); Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 997, 84 S.Ct. 1758 (1964) (right to counsel upon request on time investigation), and Bartkus v. Illinois, 359 U.S. 141, 79 S.Ct. 676, 3 L. Ed. 2d 684 (1959); and, as to double jeopardy between cumulative state and federal courts, see Mills v. Louisiana, 360 U.S. 230, 79 S.Ct. 980, 3 L. Ed. 2d 1193 (1959); Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L. Ed. 2d 1393 (1958), and Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L. Ed. 1408 (1944).

Cross references: For when prosecution is barred by former proceedings, see part 3 of article 1 of title 18.

ANNOTATION

I. General Consideration.

II. Self-Incrimination.

III. Former Jeopardy.

I. GENERAL CONSIDERATION

Law reviews. For article, "Blood, Whiskey and the Constitution", see 24 Rocky Mt. L. Rev. 459 (1952). For article, "One Year Review of Constitutional and Administrative Law", see 34 Dicta 79 (1957). For note, "Habeas Corpus in Colorado for the Convicted Criminal", see 30 Rocky Mt. L. Rev. 145 (1958). For article, "One Year Review of Constitutional and Administrative Law", see 35 Dicta 7 (1958). For article, "One Year Review of Constitutional and Administrative Law", see 36 Dicta 11 (1959). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963). For note, "One Year Review of Constitutional Law", see 41 Den. L. Ctr. J. 77 (1964). For comment, "Reporter's Privilege: Pankratz v. District Court", see 58 Den. L.J. 681 (1981). For article, "Confessions and the Juvenile Offender", see 11 Colo. Law. 896 (1982). For article, "Incriminating Evidence: What to do With a Hot Potato", see 11 Colo. Law 880 (1982). For article, "Suffering Adverse Inference from Taking the Fifth in Civil Proceedings", see 12 Colo. Law. 1445 (1983). For casenote, "People v. Quintana: How 'Probative' Is This Colorado Decision Excluding Evidence of Post-Arrest Silence?", see 56 U. Colo. L. Rev. 157 (1984). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with post-arrest silence, see 61 Den. L.J. 281 (1984). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with double jeopardy, see 61 Den. L.J. 299 (1984). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with self-incrimination, see 62 Den. U. L. Rev. 168 (1985). For article, "Defending Against the Confession at Trial", see 15 Colo. Law. 409 (1986). For comment, "People v. Connelly: Taking Confession Law to the Outer Limits of Logic", see 57 U. Colo. L. Rev. 909 (1986). For article, "Miranda Rights in a Terry Stop: The Implications of People v. Johnson", see 63 Den. U.L. Rev. 109 (1986). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with self-incrimination, see 63 Den. U. L. Rev. 343 (1986). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to self-incrimination and double jeopardy, see 15 Colo. Law. 1568 and 1572 (1986). For comment, "Oregon v. Elstad and Prior Unwarned Statements: What Suspects Don't Know Can Hurt Them", see 58 U. Colo. L. Rev. 325 (1987). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with double jeopardy, see 64 Den. U. L. Rev. 250 (1987). For article, "Logical Fallacies and the Supreme Court", see 59 U. Colo. L. Rev. 741 (1988). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with the Miranda warning and the voluntariness of confessions, see 65 Den. U. L. Rev. 547 (1988). For article, "Self-Incrimination and the Insanity Plea: Out of the Mouths of Babes", see 66 Den. U. L. Rev. 81 (1988). For a discussion of Tenth Circuit decisions dealing with criminal procedure, see 66 Den. U. L. Rev. 739 (1989). For a discussion of Tenth Circuit decisions dealing with questions of criminal procedure, see 67 Den. U. L. Rev. 701 (1990). For article, "The Admissibility of Evidence of the Pre-Trial Exercise of Constitutional Rights", see 37 Colo. Law. 81 (July 2008).

Annotator's note. For other annotations concerning double jeopardy, see part 3 of article 1 of title 18.

Protection of innocent and preservation of integrity of society. Both the United States and the Colorado Constitutions accord an accused substantive and procedural rights that are binding on the government in a criminal prosecution. Such procedures protect the innocent from an unjust conviction and preserve the integrity of society itself by keeping sound and wholesome the process by which it visits its condemnation on a wrongdoer. People v. Germany, 674 P.2d 345 (Colo. 1983).

Derivative evidence rule which excludes evidence obtained as a result of violations of a defendant's constitutional rights applies to fourth, fifth, and sixth amendment violations, and prosecution bears burden to prove that evidence sought for admission was not acquired as a result of a constitutional violation. People v. Connelly, 702 P.2d 722 (Colo. 1985).

Applied in Imboden v. People, 40 Colo. 142, 90 P. 608 (1907); Morletti v. People, 72 Colo. 7, 209 P. 796 (1922); Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931); French v. District Court, 153 Colo. 10, 384 P.2d 268 (1963); People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965); Ferrell v. Vogt, 161 Colo. 549, 423 P.2d 844 (1967); People ex rel. McKevitt v. District Court, 167 Colo. 221, 447 P.2d 205 (1968); McGee v. State Bd. of Accountancy, 169 Colo. 87, 453 P.2d 800 (1969); People v. Falgout, 176 Colo. 94, 489 P.2d 195 (1971); People v. Woods, 182 Colo. 3, 510 P.2d 435 (1973); People v. Montera, 198 Colo. 156, 596 P.2d 1198 (1979); People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980); Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); Richardson v. District Court, 633 P.2d 595 (Colo. 1981); People v. Pierson, 632 P.2d 485 (Colo. App. 1981); People v. Franklin, 645 P.2d 1 (Colo. 1982); People v. Brass-field, 652 P.2d 588 (Colo. 1982); People v. Lucero, 654 P.2d 835 (Colo. 1982); People v. Fisher, 657 P.2d 922 (Colo. 1983); People v. Lowe, 660 P.2d 1261 (Colo. 1983).

II. SELF-INCRIMINATION.

Law reviews. For note, "Involuntary Confessions — Fourth Stage in Colorado", see 31 Dicta 133 (1954). For comment on French v. District Court appearing below, see 36 U. Colo. L. Rev. 280 (1964). For comment on Lanford v. People appearing below, see 39 U. Colo. L. Rev. 158 (1966). For comment, "Limiting Prosecutorial Discovery Under the Sixth Amendment Right to Effective Assistance of Counsel: Hutchinson v. People", see 66 Den. U. L. Rev. 123 (1988).

Sections 16-8-103.6, 16-8-106, and 16-8-107 do not violate a defendant's constitutional privilege against self-incrimination. The information obtained in compulsory mental examinations is admissible only on the issue of mental condition and insanity raised by defendants themselves. People v. Bondurant, 2012 COA 50, 296 P.3d 200.

When a defendant pleads not guilty by reason of insanity, § 16-8-104.5's requirement of a unitary trial does not violate defendant's right against self-incrimination. Jury instructions based on § 16-8-107 are sufficient to protect a defendant's privilege against self-incrimination. People v. Marko, 2015 COA 139, 434 P.3d 618, aff'd, 2018 CO 97, 432 P.3d 607.

Common-law privilege fixed in constitution. Immunity from self-incrimination is a privilege immovably fixed in our constitution. The existence of the privilege is one of the outstanding and distinctive features of the common-law system of jurisprudence and one of the highest protections to the liberty of the citizens of a free democracy. Always the courts have been, and they should be, zealous in preserving the privilege. In so doing, however, they ought not to give it more than its due significance. It is to be respected rationally for its merits, not worshipped blindly as a fetish. People v. Clifford, 105 Colo. 316, 98 P.2d 272 (1939); People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956); People v. Austin, 159 Colo. 445, 412 P.2d 425 (1966).

"Criminal cases", as used in the constitution, refers to cases which at the time of the adoption of the constitution were recognized as criminal, or cases which should thereafter be made criminal by statute. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910, 90 S.Ct. 1703, 26 L. Ed. 2d 69 (1970).

Privilege is only against self-incrimination. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

A witness is possessed of a constitutional right not to incriminate himself. Smaldone v. People, 158 Colo. 16, 404 P.2d 276 (1965).

It does not permit witness to remain silent to avoid incriminating third party. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

Self-incrimination is personal right. Pub. Utils. Comm'n v. District Court, 180 Colo. 388, 505 P.2d 1300 (1973).

And privilege may not be invoked by corporations. Pub. Utils. Comm'n v. District Court, 180 Colo. 388, 505 P.2d 1300 (1973).

The right to be free from...