CRS/LII Annotated Constitution Fifth Amendment

Development and Scope

Source of this clause was the maxim “nemo tenetur seipsum accusare,” that “no man is bound to accuse himself.” The maxim is but one aspect of two different systems of law enforcement which competed in England for acceptance; the accusatorial and the inquisitorial. In the accusatorial system, which predated the reign of Henry II but was expanded and extended by him, first the community and then the state by grand and petit juries proceeded against alleged wrongdoers through the examination of others, and in the early years through examination of the defendant as well. The inquisitorial system, which developed in the ecclesiastical courts, compelled the alleged wrongdoer to affirm his culpability through the use of the oath ex officio. Under the oath, an official had the power to make a person before him take an oath to tell the truth to the full extent of his knowledge as to all matters about which he would be questioned; before administration of the oath the person was not advised of the nature of the charges against him, or whether he was accused of crime, and was also not informed of the nature of the questions to be asked.161

The use of this oath in Star Chamber proceedings, especially to root out political heresies, combined with opposition to the ecclesiastical oath ex officio, led over a long period of time to general acceptance of the principle that a person could not be required to accuse himself under oath in any proceeding before an official tribunal seeking information looking to a criminal prosecution, or before a magistrate investigating an accusation against him with or[p.1303]without oath, or under oath in a court of equity or a court of common law.162 The precedents in the colonies are few in number, but following the Revolution six states had embodied the privilege against self–incrimination in their constitutions,163 and the privilege was one of those recommended by several state ratifying conventions for inclusion in a federal bill of rights.164 Madison’s version of the clause read “nor shall be compelled to be a witness against himself,”165 but upon consideration by the House an amendment was agreed to insert “in any criminal case” in the provision.166

The historical studies cited demonstrate that in England and the colonies the privilege was narrower than the interpretation now prevailing, a common situation reflecting the gradual expansion, or occasional contracting, of constitutional guarantees based on the judicial application of the policies underlying the guarantees in the context of new factual patterns and practices. The difficulty is that the Court has generally failed to articulate the policy objectives underlying the privilege, usually citing a “complex of values” when it has attempted to state the interests served by it.167 Commonly mentioned in numerous cases was the assertion that the[p.1304]privilege was designed to protect the innocent and to further the search for truth.168 It appears now, however, that the Court has rejected both of these as inapplicable and has settled upon the principle that the clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion.169 In order to protect these interests and to preserve these values, the privilege “is not to be interpreted literally.” Rather, the “sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.”170

“The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . . [I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”171 Thus, a judge who would deny a claim of the privilege must be “‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the[p.1305]answer[s] cannot possibly have such tendency’ to incriminate.”172 The witness must have reasonable cause to apprehend danger from an answer, but he may not be the sole judge of the validity of his claim. While the trial judge may not require a witness to disclose so much of the danger as to render the privilege nugatory, he must determine whether there is a reasonable apprehension of incrimination by considering the circumstances of the case, his knowledge of matters surrounding the inquiry, and the nature of the evidence which is demanded from the witness.173 One must explicitly claim his privilege or he will be deemed to have waived it, and waiver may be found where the witness has answered some preliminary questions but desires to stop at a certain point.174

The privilege against self–incrimination is a personal one and cannot be utilized by or on behalf of any organization, such as a corporation. Thus, a corporation cannot object on self–incrimination grounds to a subpoena of its records and books or to the compelled testimony of those corporate agents who have been given personal immunity from criminal prosecution.175 Neither may a corporate official with custody of corporate documents which incriminate him personally resist their compelled production on the assertion of his personal privilege.176

[p.1306]

A witness has traditionally been able to claim the privilege in any proceeding whatsoever in which testimony is legally required when his answer might be used against him in that proceeding or in a future criminal proceeding or when it might be exploited to uncover other evidence against him.177

Supplement: [P. 1306, add to text following n.177:]

Incrimination is not complete once guilt has been adjudicated, and hence the privilege may be asserted during the sentencing phase of trial.8

Conversely, there is no valid claim on the ground that the information sought can be used in proceedings which are not criminal in nature.178 The Court in recent years has also applied the privilege to situations, such as police interrogation of suspects, in which there is no legal compulsion to speak.179 What the privilege protects against is compulsion of “testimonial” disclosures; requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, to model particular clothing, or to give samples of handwriting, fingerprints, or blood does not compel him to incriminate himself within the mean[p.1307]ing of the clause,180 although compelling him to produce private papers may.181

The protection is against “compulsory” incrimination, and traditionally the Court has treated within the clause only those compulsions which arise from legally enforceable obligations, culminating in imprisonment for refusal to testify or to produce documents.182 But the compulsion need not be imprisonment; it can as[p.1308]well be termination of public employment183 or disbarment of a lawyer184 as a legal consequence of a refusal to make incriminating admissions. In extending the concept of coercion, however, the Court has not developed a clear doctrinal explanation to identify the differences between permissible and impermissible coercion. As a general rule, it may be said that all of these cases involve the ordering of some feature of a trial in such a way that a defendant must choose between or among rights, with one choice being to risk or to submit to self–incriminating disclosures by his actions.

It has long been the rule that a defendant who takes the stand in his own behalf cannot then claim the privilege to defeat cross– examination on matters reasonably related to the subject matter of his direct examination,185 and that such a defendant may be impeached by proof of prior convictions.186 But in Griffin v. California,187 the Court refused to permit prosecutorial or judicial comment to the jury upon a defendant’s refusal to take the stand in his own behalf, because such comment was a “penalty imposed by courts for exercising a constitutional privilege” and “[i]t cuts down[p.1309]on the privilege by making its assertion costly.”188 Prosecutors’ comments violating the Griffin rule can nonetheless constitute harmless error.189 Neither may a prosecutor impeach a defendant’s trial testimony through use of the fact that upon his arrest and receipt of a Miranda warning he remained silent and did not give the police the exculpatory story he told at trial.190 But where the defendant took the stand and testified, the Court permitted the impeachment use of his pre–arrest silence when that silence had in no way been officially encouraged, through a Miranda warning or otherwise.191

Further, the Court held inadmissible at the subsequent trial a defendant’s testimony at a hearing to suppress evidence wrongfully seized, since use of the testimony would put the defendant to an impermissible choice between asserting his right to remain silent and invoking his right to be free of illegal searches and seizures.192 The Court also proscribed the introduction at a second trial of the defendant’s testimony at his first trial, given to rebut a confession which was subsequently held inadmissible, since the testimony was in effect “fruit of the poisonous tree,” and had been “coerced” from the defendant through use of the confession.193 Most potentially far– reaching was a holding that invalidated the penalty structure of a statute under which defendants could escape a possible death sentence by entering a guilty plea; the statute “needlessly encourage[d]” waivers of defendant’s Fifth Amendment right to plead not guilty and his Sixth Amendment right to a jury trial.194

While this “needless encouragement” test assessed the nature of the choice required to be made by defendants against the[p.1310]strength of the governmental interest in the system requiring the choice, the Court soon devolved another test stressing the voluntariness of the choice. A guilty plea entered by a defendant who correctly understands the consequences of the plea is voluntary unless coerced or obtained under false pretenses; moreover, there is no impermissible coercion where the defendant has the effective assistance of counsel.195 The Court in an opinion by Justice Harlan then formulated still another test in holding that a defendant in a capital case in which the jury in one process decides both guilt and sentence could be put to a choice between remaining silent on guilt or admitting guilt and being able to put on evidence designed to mitigate the possible sentence. The pressure to take the stand in response to the sentencing issue, said the Court, was not so great as to impair the policies underlying the self–incrimination clause, policies described in this instance as proscription of coercion and of cruelty in putting the defendant to an undeniably “hard” choice.196 Similarly, it has been held that requiring a defendant to give notice to the prosecution before trial of his intention to rely on an alibi defense and to give the names and addresses of witnesses who will support it does not violate the clause.197 Neither does it violate a defendant’s self–incrimination privilege to create a presumption upon the establishment of certain basic facts which the jury may utilize to infer defendant’s guilt unless he rebuts the presumption.198

[p.1311]

The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution is precluded,199 or if the result of the answers is not incrimination, but rather harm to reputation or exposure to infamy or disgrace.200 The clause does not prevent a public employer from discharging an employee who, in an investigation specifically and narrowly directed at the performance of the employee’s official duties, refuses to cooperate and to provide the employer with the desired information on grounds of self–incrimination.201 But it is unclear under what other circumstances a public employer may discharge an employee who has claimed his privilege before another investigating agency.202

Finally, the rules established by the clause and the judicial interpretations are applicable against the States to the same degree that they apply to the Federal Government,203 and neither sovereign can compel discriminatory admissions which would incriminate the person in the other jurisdiction.204

Supplement: [P. 1311, add to text at end of section:]

There is no “cooperative internationalism” that parallels the cooperative federalism and cooperative prosecution on which application against States is premised, and consequently concern with foreign prosecution is beyond the scope of the Self–Incrimination Clause.12

Footnotes

161 Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, in Essays in History and Political Theory in Honor of Charles Howard McIlwain 199 (C. Wittke ed. 1936).

162 The traditional historical account is 8 J. Wigmore, A Treatise on the Anglo–American System of Evidence Sec. 2250 (J. McNaughton rev. 1961), but more recent historical studies have indicated that Dean Wigmore was too grudging of the privilege. Leonard Levy, Origins of the Fifth Amendment: The Right Against Self–Incrimination (1968); Morgan, The Privilege Against Self–Incrimination, 34 L. Rev. 1 (1949).

163 3 F. Thorpe, The Federal and State Constitutions, reprinted in H. Doc. No. 357, 59th Congress, 2d sess. 1891 (1909) (Massachusetts); 4 id. at 2455 (New Hampshire); 5 id. at 2787 (North Carolina), 3038 (Pennsylvania); 6 id. at 3741 (Vermont); 7 id. at 3813 (Virginia).

164 Amendments were recommended by an “Address” of a minority of the Pennsylvania convention after they had been voted down as a part of the ratification action, 2 Bernard Schwartz, The Bill of Rights: A Documentary History 628, 658, 664 (1971), and then the ratifying conventions of Massachusetts, South Carolina, New Hampshire, Virginia, and New York formally took this step.

165 1 Annals of Congress 434 (June 8, 1789).

166 Id. at 753 (August 17, 1789).

167 “It reflects many of our fundamental values and most noble aspirations; our unwillingness to subject those suspected of crime to the cruel trilemma of self–accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self–incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state–individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, . . .’; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ . . . , our distrust of self– deprecatory statement; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.”’ Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1954) . A dozen justifications have been suggested for the privilege. 8 J. Wigmore, A Treatise on the Anglo–American System of Evidence 2251 (J. McNaughton rev. 1961).

168 E.g. Twining v. New Jersey, 211 U.S. 78, 91 (1908) ; Ullmann v. United States, 350 U.S. 422, 426 (1956) ; Quinn v. United States, 349 U.S. 155, 162–63 (1955) .

169 “[T]he basic purposes that lie behind the privilege against self–incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution ‘shoulder the entire load.’ . . .

“The basic purpose of a trial is the determination of truth, and it is self–evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. . . . By contrast, the Fifth Amendment’s privilege against self–incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone.” Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 416 (1966) ; Miranda v. Arizona, 384 U.S. 436, 460 (1966) ; Schmerber v. California, 384 U.S. 757, 760–765 (1966) . See also California v. Byers, 402 U.S. 424, 448–58 (1971) (Justice Harlan concurring). For a critical modern view of the privilege, see Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 Cin. L. Rev. 671 (1968).

170 Ullmann v. United States, 350 U.S. 422, 438–39 (1956) .

171 Hoffman v. United States, 341 U.S. 479, 486–87 (1951) . See also Emspak v. United States, 349 U.S. 190 (1955) ; Blau v. United States, 340 U.S. 159 (1950) ; Blau v. United States, 340 U.S. 332 (1951) .

172 341U.S. at 488 341U.S. at 488 (quoting Temple v. Commonwealth, 75 892, 898 (1881)). For an application of these principles, see Malloy v. Hogan, 378 U.S. 1, 11–14 (1964) , and id. at 33 (Justices White and Stewart dissenting). Where government is seeking to enforce an essentially noncriminal statutory scheme through compulsory disclosure, some Justices would apparently relax the Hoffman principles. Cf. California v. Byers, 402 U.S. 424 (1971) (plurality opinion).

173 Hoffman v. United States, 341 U.S. 479 (1951) ; Mason v. United States, 244 U.S. 362 (1917) .

174 Rogers v. United States, 340 U.S. 367 (1951) ; United States v. Monia, 317 U.S. 424 (1943) . The “waiver” concept here as in other recent cases has been pronounced “analytically [un]sound,” with the Court preferring to reserve the term “waiver” “for the process by which one affirmatively renounces the protection of the privilege.” Garner v. United States, 424 U.S. 648, 654, n.9 (1976). Thus, the Court has settled upon the concept of “compulsion” as applied to “cases where disclosures are required in the face of claim of privilege.” Id. “[I]n the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not ‘compelled’ him to incriminate himself.” Id. at 654. Similarly, the Court has enunciated the concept of “voluntariness” to be applied in situations where it is claimed that a particular factor denied the individual a “free choice to admit, to deny, or to refuse to answer.” Id. at 654 n.9, 656–65.

175 United States v. White, 322 U.S. 694, 701 (1944) ; Baltimore & O.R.R. v. ICC, 221 U.S. 612, 622 (1911) ; Hale v. Henkel, 201 U.S. 43, 69–70, 74–75 (1906) .

176 United States v. White, supra, 699–700; Wilson v. United States, 221 U.S. 361, 384–385 (1911) . But the government may make no evidentiary use of the act of production in proceeding individually against the corporate custodian. Braswell v. United States, 487 U.S. 99 (1988) . Cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968) ; United States v. Rylander, 460 U.S. 752 (1983) (witness who had failed to appeal production order and thus had burden in contempt proceeding to show inability to then produce records could not rely on privilege to shift this evidentiary burden).

177 Thus, not only may a defendant or a witness in a criminal trial, including a juvenile proceeding, In re Gault, 387 U.S. 1, 42–57 (1967) , claim the privilege but so may a party or a witness in a civil court proceeding, McCarthy v. Arndstein, 266 U.S. 34 (1924) , a potential defendant or any other witness before a grand jury, Reina v. United States, 364 U.S. 507 (1960) ; Counselman v. Hitchcock, 142 U.S. 547, 563 (1892) , or a witness before a legislative inquiry, Watkins v. United States, 354 U.S. 178, 195–96 (1957) ; Quinn v. United States, 349 U.S. 155 (1955) ; Emspak v. United States, 349 U.S. 190 (1955) , or before an administrative body. In re Groban, 352 U.S. 330, 333, 336–37, 345–46 (1957) ; ICC v. Brimson, 154 U.S. 447, 478–80 (1894) .

178 Allen v. Illinois, 478 U.S. 364 (1986) (declaration that person is “sexually dangerous” under Illinois law is not a criminal proceeding); Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984) (revocation of probation is not a criminal proceeding, hence “there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings”). In Murphy, the Court went on to explain that “a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination. Under such circumstances, a probationer’s ‘right to immunity as a result of his compelled testimony would not be at stake’ . . . and nothing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer . . . .” Id.

179 Miranda v. Arizona, 384 U.S. 436 (1966) .

180 Schmerber v. California, 384 U.S. 757, 764 (1966) ; United States v. Wade, 388 U.S. 218, 221–23 (1967) ; Holt v. United States, 218 U.S. 245, 252 (1910) . In California v. Byers, 402 U.S. 424 (1971) , four Justices believed that requiring any person involved in a traffic accident to stop and give his name and address did not involve testimonial compulsion and therefore the privilege was inapplicable, id. at 431–34 (Chief Justice Burger and Justices Stewart, White, and Blackmun), but Justice Harlan, id. at 434 (concurring), and Justices Black, Douglas, Brennan, and Marshall, id. at 459, 464 (dissenting), disagreed. In South Dakota v. Neville, 459 U.S. 553 (1983) , the Court indicated as well that a State may compel a motorist suspected of drunk driving to submit to a blood alcohol test, and may also give the suspect a choice about whether to submit, but use his refusal to submit to the test as evidence against him. The Court rested its evidentiary ruling on absence of coercion, preferring not to apply the sometimes difficult distinction between testimonial and physical evidence. In another case, involving roadside videotaping of a drunk driving suspect, the Court found that the slurred nature of the suspect’s speech, as well as his answers to routine booking questions as to name, address, weight, height, eye color, date of birth, and current age, were not testimonial in nature. Pennsylvania v. Muniz, 496 U.S. 582 (1990) . On the other hand, the suspect’s answer to a request to identify the date of his sixth birthday was considered testimonial. Id.

Supplement: [P. 1307, add to n.180:]

Two Justices recently challenged the interpretation limiting application to “testimonial” disclosures, claiming that the original understanding of the word “witness” was not limited to someone who gives testimony, but included someone who gives any kind of evidence. United States v. Hubbell, 120S. Ct. 2037, 2050 (2000) (Justice Thomas, joined by Justice Scalia, concurring).

181 Fisher v. United States, 425 U.S. 391 (1976) , however, holds that compelling a taxpayer by subpoena to produce documents produced by his accountants from his own papers does not involve testimonial self–incrimination and is not barred by the privilege. “[T]he Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.” Id. at 408 (emphasis by Court). Even if the documents contained the writing of the person being compelled to produce them, that would be insufficient to trigger the privilege, unless the government had compelled him to write in the first place. Id. at 410 n.11. Only if by complying with the subpoena the person would be making a communication that was both “testimonial” and “incriminating,” such as by conceding the existence of the papers or indicating that these are the papers sought, would he have a valid claim of privilege, and even there one would have to evaluate the facts and circumstances of the particular case to reach a determination. Id. at 410. Even further removed from the protection of the privilege is seizure pursuant to a search warrant of business records in the handwriting of the defendant. Andresen v. Maryland, 427 U.S. 463 (1976) . A court order compelling a target of a grand jury investigation to sign a consent directive authorizing foreign banks to disclose records of any and all accounts over which he had a right of withdrawal is not testimonial in nature, since the factual assertions are required of the banks and not of the target. Doe v. United States, 487 U.S. 201 (1988) . But in United States v. Doe, 465 U.S. 605 (1984) , the Court distinguished Fisher, upholding lower courts’ findings that the act of producing tax records implicates the privilege because it would compel admission that the records exist, that they were in the taxpayer’s possession, and that they are authentic. Similarly, a juvenile court’s order to produce a child implicates the privilege, because the act of compliance “would amount to testimony regarding [the subject’s] control over and possession of [the child].” Baltimore Dep’t of Social Services v. Bouknight, 493 U.S. 549, 555 (1990) .

Supplement: [P. 1307, delete n.181 and add to text following sentence that contained n.181:]

A person may be compelled to produce specific documents even though they contain incriminating information.9 If, however, the existence of specific documents is not known to the government, and the act of production informs the government about the existence, custody, or authenticity of the documents, then the privilege is implicated.10 Application of these principles resulted in a holding that the Independent Counsel could not base a prosecution on incriminating evidence identified and produced as the result of compliance with a broad subpoena for all information relating to the individual’s income, employment, and professional relationships.11

182 E.g., Marchetti v. United States, 390 U.S. 39 (1968) (criminal penalties attached to failure to register and make incriminating admissions); Malloy v. Hogan, 378 U.S. 1 (1964) (contempt citation on refusal to testify). See also South Dakota v. Neville, 459 U.S. 553 (1983) (no compulsion in introducing evidence of suspect’s refusal to submit to blood alcohol test, since state could have forced suspect to take test and need not have offered him a choice); Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984) (no coercion in requirement that applicants for federal financial assistance for higher education reveal whether they have registered for draft).

183 Garrity v. New Jersey, 385 U.S. 493 (1967) ; Gardner v. Broderick, 392 U.S. 273 (1968) ; Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968) . See also Lefkowitz v. Turley, 414 U.S. 70 (1973) , holding unconstitutional state statutes requiring the disqualification for five years of contractors doing business with the State if at any time they refused to waive immunity and answer questions respecting their transactions with the State. The State can require employees or contractors to respond to inquiries, but only if it offers them immunity sufficient to supplant the privilege against self–incrimination. See also Lefkowitz v. Cunningham, 431 U.S. 801 (1977) .

184 Spevack v. Klein, 385 U.S. 511 (1967) .

185 Brown v. Walker, 161 U.S. 591, 597–98 (1896) ; Fitzpatrick v. United States, 178 U.S. 304, 314–16 (1900) ; Brown v. United States, 356 U.S. 148 (1958) .

186 Spencer v. Texas, 385 U.S. 554, 561 (1967) ; cf. Michelson v. United States, 335 U.S. 469 (1948) .

187 380 U.S. 609, 614 (1965) . The result had been achieved in federal court through statutory enactment. 18 U.S.C. Sec. 3481 . See Wilson v. United States, 149 U.S. 60 (1893) . In Carter v. Kentucky, 450 U.S. 288 (1981) , the Court held that the self–incrimination clause required a State, upon defendant’s request, to give a cautionary instruction to the jurors that they must disregard defendant’s failure to testify and not draw any adverse inferences from it. This result, too, had been accomplished in the federal courts through statutory construction. Bruno v. United States, 308 U.S. 287 (1939) . In Lakeside v. Oregon, 435 U.S. 333 (1978) , the Court held that a court may give such an instruction, even over defendant’s objection. Carter v. Kentucky was applied in James v. Kentucky, 466 U.S. 341 (1983) (request for jury “admonition” sufficient to invoke right to “instruction”).

188 While the Griffin rule continues to apply when the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, it does not apply to a prosecutor’s “fair response” to a defense counsel’s allegation that the government had denied his client the opportunity to explain his actions. United States v. Robinson, 485 U.S. 25, 32 (1988) .

189 Chapman v. California, 386 U.S. 18 (1967) ; United States v. Hasting, 461 U.S. 499 (1983) .

190 Doyle v. Ohio, 426 U.S. 610 (1976) . Post–arrest silence, the Court stated, is inherently ambiguous, and to permit use of the silence would be unfair since the Miranda warning told the defendant he could be silent. The same result had earlier been achieved under the Court’s supervisory power over federal trials in United States v. Hale, 422 U.S. 171 (1975) . The same principles apply to bar a prosecutor’s use of Miranda silence as evidence of an arrestee’s sanity. Wainwright v. Greenfield, 474 U.S. 284 (1986) .

Supplement: [P. 1309, add to n.190:]

In determining whether a state prisoner is entitled to federal habeas corpus relief because the prosecution violated due process by using his post–Miranda silence for impeachment purposes at trial, the proper standard for harmless–error review is that announced in Kotteakos v. United States, 328 U.S. 750, 776 (1946) —whether the due process error “had substantial and injurious effect or influence in determining the jury’s verdict—not the stricter “harmless beyond a reasonable doubt” standard of Chapman v. California, 386 U.S. 18, 24 (1967) , applicable on direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993) .

191 Jenkins v. Anderson, 447 U.S. 231 (1980) . Cf. Baxter v. Palmigiano, 425 U.S. 308 (1976) (prison disciplinary hearing may draw adverse inferences from inmate’s assertion of privilege so long as this was not the sole basis of decision against him).

192 Simmons v. United States, 390 U.S. 377 (1968) . The rationale of the case was subsequently limited to Fourth Amendment grounds in McGautha v. California, 402 U.S. 183, 210–13 (1971) .

193 Harrison v. United States, 392 U.S. 219 (1968) .

194 Jackson v. United States, 390 U.S. 570, 583 (1968) .

195 Parker v. North Carolina, 397 U.S. 790 (1970) ; Brady v. United States, 397 U.S. 742 (1970) ; McMann v. Richardson, 397 U.S. 759 (1970) . Parker and Brady entered guilty pleas to avoid the death penalty when it became clear that the prosecution had solid evidence of their guilt; Richardson pled guilty because of his fear that an allegedly coerced confession would be introduced into evidence.

196 McGautha v. California, 402 U.S. 183, 210–20 (1971) . When the Court subsequently required bifurcated trials in capital cases, it was on the basis of the Eighth Amendment, and represented no withdrawal from the position described here. Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978) ; Bordenkircher v. Hayes, 434 U.S. 357 (1978) .

197 Williams v. Florida, 399 U.S. 78, 80–86 (1970) . The compulsion of choice, Justice White argued for the Court, proceeded from the strength of the State’s case and not from the disclosure requirement. That is, the rule did not affect whether or not the defendant chose to make an alibi defense and to call witnesses, but merely required him to accelerate the timing. It appears, however, that in Brooks v. Tennessee, 406 U.S. 605 (1972) , the Court utilized the “needless encouragement” test in striking down a state rule requiring the defendant to testify before any other defense witness or to forfeit the right to testify at all. In the Court’s view, this impermissibly burdened the defendant’s choice whether to testify or not. Another prosecution discovery effort was approved in United States v. Nobles, 422 U.S. 233 (1975) , in which a defense investigator’s notes of interviews with prosecution witnesses were ordered disclosed to the prosecutor for use in cross–examination of the investigator. The Court discerned no compulsion upon defendant to incriminate himself.

198 “The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.” Yee Hem v. United States, 268 U.S. 178, 185 (1925) , quoted with approval in Turner v. United States, 396 U.S. 398, 418 n.35 (1970) . Justices Black and Douglas dissented on self–incrimination grounds. Id. at 425. And see United States v. Gainey, 380 U.S. 63, 71, 74 (1965) (dissenting opinions). For due process limitations on such presumptions, see discussion under the Fourteenth Amendment, infra.

199 Prosecution may be precluded by tender of immunity, infra, pp.1312–15, or by pardon, Brown v. Walker, 161 U.S. 591, 598–99 (1896) . The effect of a mere tender of pardon by the President remains uncertain. Cf. Burdick v. United States, 236 U.S. 79 (1915) (acceptance necessary, and self–incrimination is possible in absence of acceptance); Biddle v. Perovich, 274 U.S. 480 (1927) (acceptance not necessary to validate commutation of death sentence to life imprisonment).

200 Brown v. Walker, 161 U.S. 591, 605–06 (1896) ; Ullmann v. United States, 350 U.S. 422, 430–31 (1956) . Minorities in both cases had contended for a broader rule. Walker, 161U.S. at 631 161U.S. at 631 (Justice Field dissenting); Ullmann, 350U.S. at 454 350U.S. at 454 (Justice Douglas dissenting).

201 Gardner v. Broderick, 392 U.S. 273, 278 (1968) . Testimony compelled under such circumstances is, even in the absence of statutory immunity, barred from use in a subsequent criminal trial by force of the Fifth Amendment itself. Garrity v. New Jersey, 385 U.S. 493 (1967) . However, unlike public employees, persons subject to professional licensing by government appear to be able to assert their privilege and retain their licenses. Cf. Spevack v. Klein, 385 U.S. 511 (1967) (lawyer may not be disbarred solely because he refused on self–incrimination grounds to testify at a disciplinary proceeding), approved in Gardner v. Broderick, 392U.S. at 277–78 392U.S. at 277–78. Justices Harlan, Clark, Stewart, and White dissented generally. 385 U.S. 500, 520, 530.

202 See Slochower v. Board of Education, 350 U.S. 551 (1956) , limited by Lerner v. Casey, 357 U.S. 468 (1958) , and Nelson v. County of Los Angeles, 362 U.S. 1 (1960) , which were in turn apparently limited by Garrity and Gardner.

203 Malloy v. Hogan, 378 U.S. 1 (1964) , (overruling Twining v. New Jersey, 211 U.S. 78 (1908) , and Adamson v. California, 332 U.S. 46 (1947) ).

204 Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964) , (overruling United States v. Murdock, 284 U.S. 141 (1931) (Federal Government could compel a witness to give testimony which might incriminate him under state law), Knapp v. Schweitzer, 357 U.S. 371 (1958) (State may compel a witness to give testimony which might incriminate him under federal law), and Feldman v. United States, 322 U.S. 487 (1944) (testimony compelled by a State may be introduced into evidence in the federal courts)). Murphy held that a State could compel testimony under a grant of immunity but that since the State could not extend the immunity to federal courts the Supreme Court would not permit the introduction of evidence into federal courts which had been compelled by a State or which had been discovered because of state compelled testimony. The result was apparently a constitutionally compelled one arising from the Fifth Amendment itself, 378U.S. at 75 378U.S. at 75– 80, rather than one taken pursuant to the Court’s supervisory power as Justice Harlan would have preferred. Id. at 80 (concurring). Congress has power to confer immunity in state courts as well as in federal in order to elicit information, Adams v. Maryland, 347 U.S. 179 (1954) , but whether Congress must do so or whether the immunity would be conferred simply through the act of compelling the testimony Murphy did not say.

Whether testimony could be compelled by either the Federal Government or a State that could incriminate a witness in a foreign jurisdiction is unsettled, see Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 480, 481 (1972) (reserving question), but an affirmative answer seems unlikely. Cf. Murphy, supra, 378U.S. at 58 378U.S. at 58– 63, 77.

Supplement Footnotes

8 Estelle v. Smith, 451 U.S. 454, 462–63 (1981) (“We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege is concerned”); Mitchell v. United States, 526 U.S. 314 (1999) (non–capital sentencing).

9 Fisher v. United States, 425 U.S. 391 (1976) . Compelling a taxpayer by subpoena to produce documents produced by his accountants from his own papers does not involve testimonial self–incrimination and is not barred by the privilege. “[T]he Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.” Id. at 408 (emphasis by Court). Even further removed from the protection of the privilege is seizure pursuant to a search warrant of business records in the handwriting of the defendant. Andresen v. Maryland, 427 U.S. 463 (1976) . A court order compelling a target of a grand jury investigation to sign a consent directive authorizing foreign banks to disclose records of any and all accounts over which he had a right of withdrawal is not testimonial in nature, since the factual assertions are required of the banks and not of the target. Doe v. United States, 487 U.S. 201 (1988) .

10 In United States v. Doe, 465 U.S. 605 (1984) , the Court distinguished Fisher, upholding lower courts’ findings that the act of producing tax records implicates the privilege because it would compel admission that the records exist, that they were in the taxpayer’s possession, and that they are authentic. Similarly, a juvenile court’s order to produce a child implicates the privilege, because the act of compliance “would amount to testimony regarding [the subject’s] control over and possession of [the child].” Baltimore Dep’t of Social Services v. Bouknight, 493 U.S. 549, 555 (1990) .

11 United States v. Hubbell, 120S. Ct. 2037 (2000).

12 United States v. Balsys, 524 U.S. 666 (1998) .

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