Taking the Fifth: The “Longer Reach” of Self-Incrimination Protection

(April 16, 2014)  The news is filled with stories about defendants in high-profile cases asserting their right to avoid self-incrimination.  (Think Bridget Anne Kelley in New Jersey’s recent “Bridgegate” scandal, Lois Lerner in the Congressional IRS inquiry, former Illinois governor Rod Blagojevich in connection with federal corruption charges; the list goes on.)  With deployment of Fifth Amendment protection in the headlines, it is worthwhile to take a look at the intentions and scope of its provisions.

The Fifth Amendment addresses five distinct constitutional rights including the right to a fair trial, a prohibition on double jeopardy, and self-incrimination.  One shall not “be compelled in any criminal case to be a witness against himself.”  There are two aspects to this clause, and they have different repercussions for those finding themselves in the legal “hot seat.” The first relates to the need for defendants to assert their rights affirmatively to law enforcement personnel during interrogation.  In a July of 2013 decision (Salinas v. Texas), the U.S. Supreme Court ruled that mere silence under police questioning is not claiming a right to silence.  Prosecutors may still use that silence against the suspect at trial.  Someone talking voluntarily to police risks losing Fifth Amendment protections if they are not affirmatively claimed.  Similarly, someone being held in custody must assert an affirmative request to consult with counsel.    In an ideal world, the request to consult with counsel should be timely honored, questioning should cease, and the fact of having asked should not be used against the suspect.  In reality, law enforcement will attempt to use every trick in the book to try and keep lawyers away.

Another aspect of the protection deals with whether or not people can be required to testify in legal proceedings.  Recent Supreme Court decisions demonstrate that the high court interprets Fifth Amendment protections broadly.  The Court has confirmed again that the privilege against self-incrimination “protects the innocent as well as the guilty,” and extends not only “to answers that would in themselves support a conviction” but also to “those which would furnish a link in the chain of evidence needed to prosecute the claimant.” Ohio v. Riener, 532 U.S. 17, 121 S. Ct. (2001).  In essence, a potential witness may invoke the Fifth if some “injurious disclosure” could result from implications drawn from the question.  In Reiner, the Court extended the privilege to those who claim innocence or “who otherwise might be ensnared by ambiguous circumstances.’ Grunewald v. United States, 353 U.S. 391, 421.” (internal quotations omitted). Reiner, at 1254.

Timing is everything, however.  An important caveat is that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. Rogers v. United States, 340 U.S. 367, 373 (1951).  However, a witness may waive the Fifth Amendment right to self-incrimination in one proceeding, and then invoke it later at a different proceeding on the same subject. United States v. Allmon, 594 F.3d 981 (8th Cir. 2010).  Finally, the Fifth Amendment right against self-incrimination does not extend to the collection of DNA or fingerprints in connection with a criminal case. The Supreme Court has held the privilege extends only to communicative evidence, and DNA and fingerprint evidence is considered non-testimonial.

The Fifth Amendment contains some of our most basic protections as Americans under the law.  Throughout history, tyrannical governments used torture to force people to confess.  Puritans who fled religious persecution brought the idea with them to America, where it would eventually be included in the Bill of Rights.  The right to remain silent is considered to be one of the most important safeguards of our criminal justice system.  Many defendants believe that they can explain away their conduct to law enforcement by agreeing to be interviewed.  Talking to law enforcement is almost always bad idea.  Rest assured that what you say will be used against you.

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