Questions unanswered: the Fifth Amendment and innocent witnesses.

AuthorRoxas, Angela
PositionSupreme Court Review

Ohio v. Reiner, 532 U.S. 17 (2001).

  1. INTRODUCTION

    In Ohio v. Reiner, (1) the United States Supreme Court examined whether a witness who denies all culpability in a child's death may still exercise a valid Fifth Amendment privilege against self-incrimination. (2) The Supreme Court previously held that the Fifth Amendment privilege protects only those witnesses who have "reasonable cause to apprehend danger from a direct answer." (3) Reiner extends the application of this standard, questioning whether a witness who claims innocence to a crime could nonetheless have "reasonable cause" to fear that her testimony would expose her to a criminal charge. (4) The validity of the Fifth Amendment privilege was pertinent to the case, since the legitimacy of the prosecution's grant of witness immunity depended on whether the witness had the right to assert the privilege. (5) The United States Supreme Court reversed the Supreme Court of Ohio, concluding that a witness who asserts innocence may not be deprived the privilege against self-incrimination. (6) The Supreme Court based its holding, in part, on the notion that "one of the Fifth Amendment's 'basic functions ... is to protect innocent men.'" (7)

    This Note first argues that the Supreme Court provided inadequate analysis in its conclusion that an innocent witness may validly claim the Fifth Amendment privilege against self-incrimination. On the one hand, the Court expands the privilege, continuing the modern trend in Fifth Amendment cases. (8) On the other hand, the Court relies principally on a policy rationale that the privilege against self-incrimination is to protect innocent men, a justification that scholars now believe is tenuous at best. (9) Not only is the Supreme Court's analysis ambiguous, the Court passed on the opportunity to address the more significant issue: how to justify the grant of immunity to an innocent witness. (10) Ultimately, the Reiner court provided a weak decision that leaves questions unanswered regarding the complexities of the Fifth Amendment in the context of innocent, non-defendant witnesses.

  2. BACKGROUND--HISTORY OF THE FIFTH AMENDMENT

    The Fifth Amendment of the United States Constitution provides, in pertinent part, that "no person ... shall be compelled in any criminal case to be a witness against himself." (11) The First Congress proposed this language in the Bill of Rights to ensure that the new federal government would not interfere with a privilege against self-incrimination. (12) The establishment of an American privilege against self-incrimination, however, was the effect of an Anglo-American legal tradition traced back to the thirteenth century. (13)

    The privilege first developed in English common law courts as a response to the inquisitorial modes of procedure used by the ecclesiastical courts, the Court of High Commission, and the Star Chamber. (14) These courts used the "oath ex officio" in prosecuting heretics who failed to conform their beliefs to the Church of England. (15) The oath forced heretics to swear before God to truthfully answer all questions before they even knew the crime of which they were accused or the identity of the accusers. (16) Since these non-conformists were helpless in redefining the substantive law that classified their activities as criminal, they looked to the common law courts for self-defense. (17) Common law lawyers found the oath "repugnant to their political values," (18) and sought to prohibit the use of the oath by relying on the Latin maxim nemo tenetur sepisum prodere ("no man is bound to accuse himself"). (19)

    One of the most famous cases regarding the legality of the oath occurred in England in 1637. (20) John Lilburne was arrested for importing seditious books into England. (21) Upon questioning by the chief clerk to the attorney general about his knowledge of the seditious books, Lilburne ceased to cooperate. (22) Two weeks later, Lilburne was brought before the Star Chamber office and refused to take the oath ex officio. (23) He was held in contempt of court and imprisoned for two years. (24) In 1640, however, Parliament reconvened and Lilburne saw the opportunity to petition for his release. (25) Both houses of Parliament found that the Star Chamber illegally sentenced Lilburne. (26) In addition, a 1641 statute abolished the Court of High Commission and the Star Chamber altogether. (27) This statute finally abolished the oath ex officio, and the "right against compulsory self-incrimination was established" in the ecclesiastical courts. (28)

    Lilburne was subsequently put on trial for treason, and again argued that there was no requirement that he answer questions about himself. (29) The court agreed, and as a result of this trial, "courts uniformly honored such refusals." (30) Moreover, a 1662 statute provided that "no one shall administer to any person whatsoever the oath usually called ex-officio, or any other oath, whereby such persons may be charged or compelled to confess any criminal matter." (31) Thus, the prohibition of the oath ex officio finally extended to the courts of law. (32)

    It is unsurprising that English legal traditions were followed in America, as British subjects primarily settled most of the colonies. (33) Since the colonists felt they were subjected to British violations of common law, they determined that written constitutions were necessary to ensure their fundamental rights after the Revolutionary War. (34) Based on the resistance to the oath ex officio in England and the use of inquisitorial procedures in America, the privilege against self-incrimination was one issue recognized in the new constitutions. (35)

    The constitutional convention in 1787 did not establish a bill of rights, and the convention adjourned prior to ratifying written protection for fundamental liberties. (36) Yet it became clear that a bill of rights was necessary to alleviate suspicions about the newly formed federal government. (37) After Congress assembled in 1789, James Madison took responsibility for such a document. (38) His first proposal regarding the right to silence "provided that no person 'shall be compelled to be a witness against himself.'" (39) An amendment in the House, however, limited the right to criminal matters and was then left unchanged by the Senate. (40) With relatively little debate, Congress included the self-incrimination privilege in the Bill of Rights. (41)

    Almost twenty years later, Chief Justice Marshall wrote one of the earliest interpretations of the Fifth Amendment during the trial of Aaron Burr. (42) In this case, Aaron Burr was tried for treason and a misdemeanor in preparing for a military mission against Mexico, a Spanish territory at peace with America. (43) Before the grand jury, Burr's secretary, Mr. Willie, was asked whether Aaron Burr instructed him to copy a certain paper. (44) He refused to answer, fearing his testimony would incriminate him. (45) The Chief Justice stated that if a direct answer may incriminate a witness, the witness must be the sole judge of what his answer would be. (46) He went on to find that the court could not participate with him in the judgment, because the court could not decide the effect of an answer without knowing what it would be. (47) This disclosure of the fact to the court would strip the witness of the privilege that the law allows. (48)

    This literal explanation of the Fifth Amendment was unsatisfactory to many of the states and the federal government. (49) In the century after Burr's trial, many jurisdictions passed statutes providing witnesses immunity from prosecution in exchange for compelled testimony. (50) These statutes were based on the view that a witness could not be incriminating himself if given immunity from prosecution in connection to his testimony. (51) The Court first considered the constitutionality of one of these statutes in 1892. (52) In Counselman v. Hitchcock, the Court struck down an immunity statute, since the statute did not prevent the use of the witness's testimony "to search out other testimony to be used in evidence against him or his property." (53) Thus, the statute left the witness open to prosecution after answering incriminating questions, and therefore did not "supply a complete protection from all of the perils against which the constitutional prohibition was designed to guard." (54)

    When the Supreme Court reconsidered the issue, however, a sharply divided Court upheld a new statute compelling testimony in exchange for an immunity grant. (55) Although the holding of Brown v. Walker concerned the constitutionality of the immunity statute, the Court stated in dicta that the Fifth Amendment privilege against self-incrimination did not apply in certain classes of cases; therefore an immunity grant was not always necessary to compel testimony. (56) The Court explained that "[w]hen examined, these cases will all be found to be based upon the idea that, if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness, the rule ceases to apply." (57) The Court recognized that the protection afforded by the Fifth Amendment was confined to real danger. (58) Since Brown, the Fifth Amendment privilege is generally unavailable unless the witness's testimony could result in punishment. (59)

    Two early twentieth-century United States Supreme Court decisions elaborate on this more restrictive view of the Fifth Amendment privilege. (60) In Heike v. United States, (61) a witness claimed that his grant of transactional immunity for prior testimony in an antitrust investigation of the sugar industry also covered allegations of revenue offenses against him for fraudulently weighing sugar. (62) The Court found that providing information in the antitrust case did not sufficiently risk incrimination regarding the fraud prosecution in order to be protected by the immunity grant. (63) Four years later, the Supreme Court...

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