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Reporting and Disclosure.—The line of cases begins with United States v. Sullivan232 in which a unanimous Court held that the Fifth Amendment did not privilege a bootlegger in not filing an income tax return because the filing would have disclosed the illegality in which he was engaged. “It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.” Justice Holmes stated for the Court. However, “[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return . . . .” Utilizing its taxing power to reach gambling activities over which it might not have had jurisdiction otherwise,233 Congress enacted a complicated statute imposing an annual occupational tax on gamblers and an excise tax on all their wages, and coupled the tax with an annual registration requirement under which each gambler must file with the IRS a declaration of his business with identification of his place of business and his employees and agents, filings which were made available to state and local law enforcement agencies. These requirements were upheld by the Court against self–incrimination challenges on the three grounds that (1) the privilege did not excuse a complete failure to file, (2) since the threshold decision to gamble was voluntary, the required disclosures were not compulsory, and (3) since registration required disclosure only of prospective conduct, the privilege, limited to past or present acts, did not apply.234

Constitutional limitations appeared, however, in Albertson v. SACB,235 which struck down under the self–incrimination clause an order pursuant to statute requiring registration by individual members of the Communist Party or associated organizations. “In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are di[p.1318]rected at a highly selective group inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form’s questions in context might involve the petitioners in the admission of a crucial element of a crime.”236

The gambling tax reporting scheme was next struck down by the Court.237 Because of the pervasiveness of state laws prohibiting gambling, said Justice Harlan for the Court, “the obligations to register and to pay the occupational tax created for petitioner ‘real and appreciable,’ and not merely ‘imaginary and unsubstantial,’ hazards of self–incrimination.”238 Overruling Kahriger and Lewis, the Court rejected its earlier rationales. Registering per se would have exposed a gambler to dangers of state prosecution, so Sullivan did not apply.239 Any contention that the voluntary engagement in gambling “waived” the self–incrimination claim, because there is “no constitutional right to gamble,” would nullify the privilege.240 And the privilege was not governed by a “rigid chronological distinction” so that it protected only past or present conduct, but also reached future self–incrimination the danger of which is not specu[p.1319]lative and insubstantial.241 Significantly, then, Justice Harlan turned to distinguishing the statutory requirements here from the “required records” doctrine of Shapiro. “First, petitioner . . . was not . . . obliged to keep and preserve records ‘of the same kind as he has customarily kept’; he was required simply to provide information, unrelated to any records which he may have maintained, about his wagering activities. This requirement is not significantly different from a demand that he provide oral testimony . . . . Second, whatever ‘public aspects’ there were to the records at issue in Shapiro, there are none to the information demanded from Marchetti. The Government’s anxiety to obtain information known to a private individual does not without more render that information public; if it did, no room would remain for the application of the constitutional privilege. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were imposed in ‘an essentially non–criminal and regulatory area of inquiry’ while those here are directed to a ‘selective group inherently suspect of criminal activities.’ The United States’ principal interest is evidently the collection of revenue, and not the punishment of gamblers, . . . but the characteristics of the activities about which information is sought, and the composition of the groups to which inquiries are made, readily distinguish this situation from that in Shapiro.”242

Most recent of this line of cases is California v. Byers,243 which indicates that the Court has yet to settle on an ascertainable standard for judging self–incrimination claims in cases where government is asserting an interest other than criminal law enforcement. Byers sustained the constitutionality of a statute which required the driver of any automobile involved in an accident to stop and give his name and address. The state court had held that a driver who reasonably believed that compliance with the statute would result in self–incrimination could refuse to comply. A plurality of the Court, however, determined that Sullivan and Shapiro applied and not the Albertson–Marchetti line of cases, because the[p.1320]purpose of the statute was to promote the satisfaction of civil liabilities resulting from automobile accidents and not criminal prosecutions, and because the statute was directed to all drivers and not to a group which was either “highly selective” or “inherently suspect of criminal activities.” The combination of a noncriminal motive with the general character of the requirement made too slight for reliance the possibility of incrimination.244 Justice Harlan concurred to make up the majority on the disposition of the case, disagreeing with the plurality’s conclusion that the stop and identification requirement did not compel incrimination.245 However, the Justice thought that where there is no governmental purpose to enforce a criminal law and instead government is pursuing other legitimate regulatory interests, it is permissible to apply a balancing test between the government’s interest and the individual’s interest. When he balanced the interests protected by the Amendment—protection of privacy and maintenance of an accusatorial system—with the noncriminal purpose, the necessity for self–reporting as a means of securing information, and the nature of the disclosures required, Justice Harlan voted to sustain the statute.246 Byers was applied in Baltimore Dep’t of Social Services v. Bouknight247 to uphold a juvenile court’s order that the mother of a child under the court’s supervision produce the child. Although in this case the mother was suspected of having abused or murdered her child, the order was justified for “compelling reasons unrelated to criminal law enforcement”: concern for the child’s safety.248 Moreover, be[p.1321]cause the mother had custody of her previously abused child only as a result of the juvenile court’s order, the Court analogized to the required records cases to conclude that the mother had submitted to the requirements of the civil regulatory regime as the child’s “custodian.”

FIFTH AMENDMENT
RIGHTS OF PERSONS
SELF–INCRIMINATION

Confessions: Police Interrogation, Due Process, and Self– Incrimination

“In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.”’249 This language in an 1897 case marked a sharp if unacknowledged break with the doctrine of previous cases in which the Court had applied the common–law test of voluntariness to determine the admissibility of confessions, and, while the language was never expressly disavowed in subsequent cases, the Court seems nevertheless to have proceeded along due process standards rather than self– incrimination analysis. Because the self–incrimination clause for most of this period was not applicable to the States, the admissibility of confessions in state courts was determined under due process standards developed from common–law voluntariness principles. It was only after the Court extended the self–incrimination clause to the States that a divided Court reaffirmed and extended the 1897 ruling and imposed on both federal and state trial courts new rules for admitting or excluding confessions and other admissions made to police during custodial interrogation.250 Though recent research tends to treat as oversimplified Wigmore’s conclusion that “there never was any historical connection . . . between the constitutional clause and the confession–doctrine,”251 the fact is that the contention, coupled with the inapplicability of the self–incrimination clause to the States, was apparently the basis until recently for the Supreme Court’s adjudication of confession cases.

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The Common Law Rule.—Not until the latter part of the eighteenth century did there develop a rule excluding coerced confessions from admission at trial; prior to that time, even confessions obtained by torture were admissible. As the rule developed in England and in early United States jurisprudence, the rationale was the unreliability of the confession’s contents when induced by a promise of benefit or a threat of harm.252 In its first decision on the admissibility of confessions, the Court adopted the common–law rule, stressing that while a “voluntary confession of guilt is among the most effectual proofs in the law, from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution.” “[T]he presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self–control essential to make his confession voluntary within the meaning of the law.”253 Subsequent cases followed essentially the same line of thought.254 Then, in Bram v. United States255 the Court assimilated the common–law rule thus mentioned as a command of the Fifth Amendment and indicated that henceforth a broader standard for judging admissibility was to be applied.256 Though this rule257 and the case itself were subsequently approved in several cases,258 the Court could hold within a few years that a confession should not be excluded merely because the authorities had not warned a sus[p.1323]pect of his right to remain silent,259 and more than once later Courts could doubt “whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amendment’s protection against self–incrimination, or from a rule that forced confessions are untrustworthy. . . .”260

McNabb–Mallory Doctrine.—Perhaps one reason the Court did not squarely confront the application of the self–incrimination clause to police interrogation and the admissibility of confessions in federal courts was that in McNabb v. United States261 it promulgated a rule excluding confessions obtained after an “unnecessary delay” in presenting a suspect for arraignment after arrest.262 This rule, developed pursuant to the Court’s supervisory power over the lower federal courts263 and hence not applicable to the States as a constitutional rule would have been,264 was designed to implement the guarantees assured to a defendant by the Federal Rules of Criminal Procedure,265 and was clearly informed with concern over incommunicado interrogation and coerced confessions.266 While the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment would invalidate confessions, Congress in 1968 legislated to set a six–hour pe[p.1324]riod for interrogation following arrest before the suspect must be presented.267


Footnotes

232 274 U.S. 259, 263, 264 (1927) . Sullivan was reaffirmed in Garner v. United States, 424 U.S. 648 (1976) , holding that a taxpayer’s privilege against self–incrimination was not violated when he failed to claim his privilege on his tax returns, and instead gave incriminating information leading to conviction. One must assert one’s privilege to alert the Government to the possibility that it is seeking to obtain incriminating material. It is not coercion forbidden by the clause that upon a claim of the privilege the Government could seek an indictment for failure to file, since a valid claim of privilege cannot be the basis of a conviction. The taxpayer was not entitled to a judicial ruling on the validity of his claim and an opportunity to reconsider if the ruling went against him, irrespective of whether a good–faith erroneous assertion of the privilege could subject him to prosecution, a question not resolved.
233 The expansion of the commerce power would now obviate reliance on the taxing power.
234 United States v. Kahriger, 345 U.S. 22 (1953) ; Lewis v. United States, 348 U.S. 419 (1955) .
235 382 U.S. 70 (1965) .
236 Id. at 79. The decision was unanimous, Justice White not participating. The same issue had been held not ripe for adjudication in Communist Party v. SACB, 367 U.S. 1, 105–10 (1961) .
237 Marchetti v. United States, 390 U.S. 39 (1968) (occupational tax); Grosso v. United States, 390 U.S. 62 (1968) (wagering excise tax). In Haynes v. United States, 390 U.S. 85 (1968) , the Court struck down a requirement that one register a firearm that it was illegal to possess. The following Term on the same grounds the Court voided a statute prohibiting the possession of marijuana without having paid a transfer tax and registering. Leary v. United States, 395 U.S. 6 (1969) ; United States v. Covington, 395 U.S. 57 (1969) . However, a statute was upheld which prohibited the sale of narcotics to a person who did not have a written order on a prescribed form, since the requirement caused the self–incrimination of the buyer but not the seller, the Court viewing the statute as actually a flat proscription on sale rather than a regulatory measure. Minor v. United States, 396 U.S. 87 (1969) . The congressional response was reenactment of the requirements coupled with use immunity. United States v. Freed, 401 U.S. 601 (1971) .
238 Marchetti v. United States, 390 U.S. 39, 48 (1968) .
239 “Every element of these requirements would have served to incriminate petitioners; to have required him to present his claim to Treasury officers would have obliged him ‘to prove guilt to avoid admitting it.”’ Id. at 50.
240 “The question is not whether petitioner holds a ‘right’ to violate state law, but whether, having done so, he may be compelled to give evidence against himself. The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege’s protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who most require it.” Id. at 51. But cf. California v. Byers, 402 U.S. 424, 434 (1971) (plurality opinion), in which it is suggested that because there is no “right” to leave the scene of an accident a requirement that a person involved in an accident stop and identify himself does not violate the self–incrimination clause.
241 Marchetti v. United States, 390 U.S. 39, 52–54 (1968) . “The central standard for the privilege’s application has been whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination. This principle does not permit the rigid chronological distinctions adopted in Kahriger and Lewis. We see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence.” Id. at 53–54. Cf. United States v. Freed, 401 U.S. 601, 605–07 (1971) .
242 Marchetti v. United States, 390 U.S. 39, 57 (1968) .
243 402 U.S. 424 (1971)
244 Id. at 427–31 (Chief Justice Burger and Justices Stewart, White, and Blackmun).
245 “The California Supreme Court was surely correct in considering that the decisions of this Court have made it clear that invocation of the privilege is not limited to situations where the purpose of the inquiry is to get an incriminating answer . . . . [I]t must be recognized that a reading of our more recent cases . . . suggests the conclusion that the applicability of the privilege depends exclusively on a determination that, from the individual’s point of view, there are ‘real’ and not ‘imaginary’ risks of self–incrimination in yielding to state compulsion. Thus, Marchetti and Grosso . . . start from an assumption of a non–prosecutorial governmental purpose in the decision to tax gambling revenues; those cases go on to apply what in another context I have called the ‘real danger v. imaginary possibility standard . . . .’ A judicial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading these opinions as indicating that the ‘inherently–suspect–class’ factor is relevant only as an indicium of genuine incriminating risk as assessed from the individual’s point of view.” Id. at 437–38.
246 Id. at 448–58. The four dissenters argued that it was unquestionable that Byers would have faced real risks of self– incrimination by compliance with the statute and that this risk was sufficient to invoke the privilege. Id. at 459, 464 (Justices Black, Douglas, Brennan, and Marshall).
247 493 U.S. 549 (1990) .
248 Id. at 561. By the same token, the Court concluded that the targeted group—persons who care for children pursuant to a juvenile court’s custody order—is not a group “inherently suspect of criminal activities” in the Albertson–Marchetti sense.
249 Bram v. United States, 168 U.S. 532, 542 (1897) .
250 Miranda v. Arizona, 384 U.S. 436 (1966) .
251 3 J. Wigmore, A Treatise on the Anglo–American System of Evidence Sec. 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id., Sec. 2266 (McNaughton rev. 1961). It appears that while the two rules did develop separately, they did stem from some of the same considerations, and, in fact, the confession rule may be considered in important respects to be an off–shoot of the privilege against self– incrimination. See L. Levy, Origins of the Fifth Amendment—The Right against Self–Incrimination 325–32, 495 n.43 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 581–84, especially 583 n.25 (1961) (Justice Frankfurter announcing judgment of the Court).
252 3 J. Wigmore, A Treatise on the Anglo–American System of Evidence Sec. 823 (3d ed. 1940); Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 954–59 (1966).
253 Hopt v. Utah, 110 U.S. 574, 584–85 (1884) . Utah at this time was a territory and subject to direct federal judicial supervision.
254 Pierce v. United States, 160 U.S. 335 (1896) ; Sparf v. United States, 156 U.S. 51 (1895) . In Wilson v. United States, 162 U.S. 613 (1896) , failure to provide counsel or to warn the suspect of his right to remain silent was held to have no effect on the admissibility of a confession but was only to be considered in assessing its credibility.
255 168 U.S. 532 (1897) . “[T]he generic language of the [Fifth] Amendment was but a crystallization of the doctrine as to confessions, well settled when the Amendment was adopted. . . .” Id. at 543.
256 Id. at 549.
257 Ziang Sun Wan v. United States, 266 U.S. 1, 14–15 (1924) . This case first held that the circumstances of detention and interrogation were relevant and perhaps controlling on the question of admissibility of a confession.
258 Burdeau v. McDowell, 256 U.S. 465, 475 (1921) ; Powers v. United States, 223S 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963) .
259 Powers v. United States, 223 U.S. 303 (1912) .
260 United States v. Carignan, 342 U.S. 36, 41 (1951) . See also McNabb v. United States, 318 U.S. 332, 346 (1943) ; Brown v. Mississippi, 297 U.S. 278, 285 (1936) ; Stein v. New York, 346 U.S. 156, 191 n.35 (1953) .
261 318 U.S. 332 (1943) . See also Anderson v. United States, 318 U.S. 350 (1943) .
262 In Upshaw v. United States, 335 U.S. 410 (1948) , the Court rejected lower court interpretations that delay in arraignment was but one factor in determining the voluntariness of a confession, and held that a confession obtained after a thirty–hour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957) , held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible. United States v. Mitchell, 322 U.S. 65 (1944) .
263 McNabb v. United States, 318 U.S. 332, 340 (1943) ; Upshaw v. United States, 335 U.S. 410, 414 n.2 (1948) . Burns v. Wilson, 346 U.S. 137, 145 n.12 (1953) , indicated that because the Court had no supervisory power over courts–martial, the rule did not apply in military courts.
264 Gallegos v. Nebraska, 342 U.S. 55, 60, 63–64, 71–73 (1951) ; Stein v. New York, 346 U.S. 156, 187–88 (1953) ; Culombe v. Connecticut, 367 U.S. 568, 599–602 (1961) (Justice Frankfurter announcing judgment of the Court).
265 Rule 5(a) requiring prompt arraignment was promulgated in 1946, but the Court in McNabb relied on predecessor statutes, some of which required prompt arraignment. Cf. Mallory v. United States, 354 U.S. 449, 451–54 (1957) . Rule 5(b) requires that the magistrate at arraignment must inform the suspect of the charge against him, must warn him that what he says may be used against him, must tell him of his right to counsel and his right to remain silent, and must also provide for the terms of bail.
266 McNabb v. United States, 318 U.S. 332, 343 (1943) ; Mallory v. United States, 354 U.S. 449, 452–53 (1957) .
267 The provision was part of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 210 , 18 U.S.C. Sec. 3501 (c).
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