Chapter 7 Compulsory Self-Incrimination

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Chapter 7 Compulsory Self-Incrimination
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Self-incriminating evidence Two categories

• Testimonial evidence communication of thoughts
  or information in response to official questions
  or interrogations.
• Physical evidence all evidence other than
  testimonial. Can be either appearance and bodily
  evidence

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• Appearance evidence evidence obtained from body
  characteristics that suspect routinely exposes to
  public.
• Bodily evidence physical evidence obtained from
  body by 1) searching parts not normally exposed
  to public, 2) seizing biological materials, or 3)
  seizing foreign substances on or inside body

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Note Compulsion to furnish self-incriminating
physical evidence is regulated by Fourth Amendment
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Fifth Amendment Protection Against Testimonial
Self-Incrimination

• The Fifth Amendment privilege against testimonial
  self-incrimination is violated whenever
  government compels disclosure of testimonial
  evidence that could later be used against the
  person in a criminal proceeding.

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There are two levels of Fifth Amendment protection

• Absolute right to remain silent during custodial
  interrogation and at their criminal trial.
• In all other situation, citizens may be compelled
  to appear and testify, but are privileged to
  refuse to answer specific questions if the answer
  might tend to incriminate them.

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Prerequisites for Application of Fifth Amendment

• Fifth Amendment is violated when citizen is
  compelled to furnish self-incriminating
  testimony. Three prerequisites
• 1) Testimonial-Communication of persons
  thoughts, beliefs, or knowledge. May be oral
  written, or inferred from persons conduct. Note
  It does not include persons handwriting or voice
  characteristics, which are a form of physical
  evidence. Compelled physical evidence does not
  violate Fifth Amendment

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Prerequisites of Fifth Amendment, contd.

• 2) Compulsion Occurs when government demands
  disclosure of information that is backed by
  threat of sanction
• 3) Self-Incrimination To be self-incriminating,
  compelled answer must expose person to risk of
  criminal prosecution.

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Fifth Amendment Prerequisites, contd

• A. Fifth Amendment does not apply to responses
  to routine booking questions.
• Persons who have already been tried for crime
  about which they are questioned may not invoke
  Fifth Amendment because of double jeopardy.
• Persons who have been granted immunity may not
  invoke the 5th.

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Immunity

• Absolute Immunity- exempts from prosecution for
  crimes revealed during compelled testimony
• Use Immunity does not exempt from prosecution
  it bars the government from using any information
  revealed during compelled testimony, including
  evidence derived from it.

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Immunity, contd.

• Use immunity (including derivative) is adequate
  to satisfy 5th Amendment requirements for
  compelling testimony.
• Only prosecutor has authority to grant immunity.
  If police promise immunity to elicit information
  from a suspect, the suspects statement will be
  considered involuntary and will be suppressed.
• Class discussion questions.

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Invoking Fifth Amendment

• Criminal defendants have Fifth Amendment right to
  remain silent at their criminal trial.
• Witnesses other than criminal defendants do not
  have right to remain silent. They must take the
  witness stand and may invoke privilege against
  self-incrimination only if they are asked
  questions that call for an incriminating response.

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Waiving the Privilege

• Criminal defendants by voluntarily taking the
  witness stand and testifying on their own behalf.
• Witnesses other than criminal defendants when
  they voluntarily answer incriminating questions
  without invoking the privilege.

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Protection from Adverse Consequences from
Exercising Privilege Against Self-Incrimination

• When defendant chooses not to testify, judges and
  prosecutors are prohibited from making any direct
  adverse comment during trial about defendants
  decision not to testify.
• Witnesses other than criminal defendants are
  protected against adverse consequences only when
  consequences are imposed as penalty for
  exercising 5th Amendment rights

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• When litigant in civil case invokes 5th Amendment
  and refuses to answer relevant questions, judge
  may instruct jury to find in favor of opposing
  party on the matter the witness has refused to
  disclose.

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Self-Reporting Laws and Fifth Amendment

• Citizens involved in criminal activity are not
  excused from complying with reporting laws, such
  as IRS laws, which serve a legitimate regulatory
  purpose.
• Citizens may refuse to comply with government
  reporting laws that serve no regulatory purpose
  other than forcing them to disclose their
  criminal activity.

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Fourth Amendment Protection Against Bodily
Self-Incrimination

• Fifth Amendment protects only testimonial
  evidence. Evidence derived from suspects body
  rather than mind is physical evidence and thus,
  not protected by Fifth Amendment
• Schmerber v California blood tests did not
  violate 5th Amendment.

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Fourth Amendment Bodily Self-Incrimination,
contd

• Pennsylvania v Muniz Miranda warnings are
  necessary only when the police seek to elicit
  self-incriminating testimony from suspect.
  Warnings not required before compelling suspects
  to cooperate in generating self-incriminating
  physical evidence, e.g. fingerprinting,
  photograph, lineup, handwriting/voice samples,
  urine, blood, field sobriety tests, etc.

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Fourth Amendment Bodily Self-Incrimination,
contd

• Compelled production of physical evidence is
  regulated by Fourth Amendment. The Fourth
  Amendment protects three discrete interests
  citizens have
• Freedom of movement,
• Bodily privacy, and
• Bodily integrity

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Fourth Amendment, contd.

• Physical evidence taken from suspects body is
  divided into two categories 1) Appearance
  evidence, and 2) bodily evidence.
• 1) Appearance Evidence evidence taken from
  suspects body without invading his privacy,
  penetrating body surface, or seizing biological
  or foreign materials.
• 4th Amendment interest invaded freedom of
  movement

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Fourth Amendment, contd.

• Appearance evidence includes evidence obtained
  from the following procedures lineups, showups,
  photographs, fingerprints, body measurements,
  voice and handwriting exemplars, and field
  sobriety tests
• Compelled production of appearance evidence is
  permissible whenever police have constitutional
  grounds to seize and detain suspect long enough
  to perform the procedure.

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• All appearance procedures are permissible when
  police have probable cause for arrest
• Appearance evidence procedure that can be
  completed quickly in the field may be performed
  if police have reasonable suspicion for Terry
  stop. However, may not transfer suspect to
  station under Terry.

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• 2) Bodily evidence Evidence derived from a
  suspects body by 1) searching areas not
  normally exposed to public, 2) penetrating body
  surface, or 3) removing biological or foreign
  substances.
• Includes following procedures 1) removing
  residue from body surface, 2) taking x-rays, 3)
  taking body tissue and fluids (e.g. blood, semen,
  etc.) 4) performing strip searches and body
  cavity searches, and 5) reaching into suspects
  mouth or pumping stomach to recover evidence.

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• Unlike appearance evidence, which involves no
  intrusion beyond seizure of person, procedures
  involving bodily evidence either expose matters
  in which suspect maintains a reasonable
  expectation of privacy, resulting in a Fourth
  Amendment search, or involve seizure of tangible
  items from a person, triggering Fourth Amendment
  seizure protection.

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Revisit Schmerber v California

• No Fifth Amendment issue, because extracting
  blood does not involve testimony.
• Fourth Amendment issue Compelled intrusion into
  Schmerbers body to obtain blood sample is a
  seizure of his person and a search for evidence
  and is therefore a 4th Amendment issue.

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Schmerber, cont.

• Searches involving intrusions beyond body surface
  require search warrant, unless the bodily
  evidence sought is of type likely to deteriorate
  rapidly.
• Court held police complied with Fourth Amendment
  in taking blood they had probable cause because
  blood-alcohol levels metabolize rapidly, police
  faced with exigent circumstance that did not
  allow time for search warrant procedure was
  performed in reasonable manner by trained
  professional.

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Bodily Evidence, cont.

• Four factors must be satisfied to determine if
  procedure was performed in a reasonable manner
• Governments need for evidence must outweigh
  suspects interest in privacy or bodily integrity
  that procedure will invade,
• Clear indication that procedure will produce
  needed evidence,
• Police must obtain search warrant before
  performing procedure unless immediate danger
  evidence will be destroyed,
• Procedure to recover must be reasonable and
  performed in reasonable manner.

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• Justification for procedure Governments burden
  to demonstrate need for evidence increases as the
  procedure becomes more invasive. Thus, stronger
  showing of need is necessary to compel drawing
  blood than for procedures that swab under
  fingernails or pluck stand of hair.

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• Manner Procedures involving bodily evidence must
  be performed in a reasonable manner, with due
  regard for privacy and health concerns of
  suspect. Qualified personnel must generally be
  used for procedures that involve intrusions below
  the bodys surface other than emergency seizure
  of objects from suspects mouth

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• Need for warrant Unless emergency threatens
  destruction of evidence, courts require search
  warrant is usually required for procedures that
  1) involves saliva, urine, semen, pubic hair, or
  other bodily fluids 2) penetrates body surface
  3) requires examination of rectal or genital
  cavities 4) involves physical pain or severe
  discomfort 5) is dangerous to health or 6) is
  degrading or humilating

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• 1) Testing for intoxication warrants are not
  required before drawing blood to test for
  intoxication.
• 2) Swabbing for residue no warrant required for
  residue left on skin, since it can deteriorate
  rapidly.
• 3) Retrieving swallowed evidence If police have
  probable cause that suspect placed evidence in
  mouth, they may use reasonable force to prevent
  him from swallowing includes reaching into
  mouth. Courts are split on use of chokeholds.

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• 4) Strip searches reasonable suspicion
• 5) Body cavity searches probable cause