Chapter 7
Compulsory Self-Incrimination
Self-incriminating evidence: Two
categories
1. Testimonial evidence – communication of
thoughts or information in response to
official questions or interrogations.
2. Physical evidence – all evidence other
than testimonial. Can be either appearance
and bodily evidence
• 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
Note: Compulsion to furnish selfincriminating physical evidence
is regulated by Fourth
Amendment
Fifth Amendment Protection
Against Testimonial SelfIncrimination
• 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.
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.
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 person’s
thoughts, beliefs, or knowledge. May be oral
written, or inferred from person’s conduct. Note: It
does not include person’s handwriting or voice
characteristics, which are a form of physical
evidence. Compelled physical evidence does not
violate Fifth Amendment
Prerequisites of Fifth
Amendment, cont’d.
2) Compulsion – Occurs when government
demands disclosure of information that is
backed by threat of sanction
3) Self-Incrimination – To be selfincriminating, compelled answer must
expose person to risk of criminal
prosecution.
Fifth Amendment Prerequisites,
cont’d
A. Fifth Amendment does not apply to
responses to routine booking questions.
B. Persons who have already been tried for
crime about which they are questioned
may not invoke Fifth Amendment because
of double jeopardy.
C. Persons who have been granted immunity
may not invoke the 5th.
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.
Immunity, cont’d.
• 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 suspect’s statement will be
considered involuntary and will be suppressed.
• Class discussion questions.
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.
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.
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 defendant’s
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
• 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.
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.
Fourth Amendment Protection
Against Bodily SelfIncrimination
• Fifth Amendment protects only testimonial
evidence. Evidence derived from suspect’s
body rather than mind is physical evidence
and thus, not protected by Fifth Amendment
• Schmerber v California – blood tests did not
violate 5th Amendment.
Fourth Amendment & Bodily
Self-Incrimination, cont’d
• 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.
Fourth Amendment & Bodily
Self-Incrimination, cont’d
•
Compelled production of physical
evidence is regulated by Fourth
Amendment. The Fourth Amendment
protects three discrete interests citizens
have:
1) Freedom of movement,
2) Bodily privacy, and
3) Bodily integrity
Fourth Amendment, cont’d.
• Physical evidence taken from suspect’s body is
divided into two categories: 1) Appearance
evidence, and 2) bodily evidence.
1) Appearance Evidence: evidence taken from
suspect’s body without invading his privacy,
penetrating body surface, or seizing biological or
foreign materials.
• 4th Amendment interest invaded: freedom of
movement
Fourth Amendment, cont’d.
• 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.
• 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.
2) Bodily evidence: Evidence derived from a
suspect’s 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 suspect’s mouth or
pumping stomach to recover evidence.
• 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.
Revisit Schmerber v California
• No Fifth Amendment issue, because
extracting blood does not involve testimony.
• Fourth Amendment issue: Compelled
intrusion into Schmerber’s body to obtain
blood sample is a seizure of his person and
a search for evidence and is therefore a 4th
Amendment issue.
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.
Bodily Evidence, cont.
•
Four factors must be satisfied to determine if
procedure was performed in a reasonable
manner:
1)
Government’s need for evidence must outweigh suspect’s 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.
2)
3)
4)
• Justification for procedure: Government’s
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.
• 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
body’s surface other than emergency seizure
of objects from suspect’s mouth
• 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
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.
4) Strip searches: reasonable suspicion
5) Body cavity searches: probable cause