CRS Annotated Constitution
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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.”
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.
[p.1322]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
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