A couple of weeks ago, I wrote about the prohibition against the State commenting on a defendant’s failure to testify, or, in other words, a defendant’s silence at trial. Such comments are disallowed as they abridge a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence. This post addresses a related issue: When and how may the State in a criminal trial use evidence of a defendant’s silence before trial to establish a defendant’s guilt or impeach a defendant’s credibility? (This is not the first time we have written about this topic on the blog. Jessie Smith did so here in 2012; nevertheless, a few relevant cases have been decided since then, and I thought it would be helpful to revisit the issue.)
fifth amendment
Just Say No to Commenting on the Defendant’s Failure to Testify
While a prosecutor in a criminal trial may comment on a defendant’s failure to produce witnesses or evidence to contradict or refute the State’s case, a prosecutor may not make any reference to or comment on a defendant’s failure to testify. Such remarks violate both a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence (see U.S. Const. Amend. V, N.C. Const. art. I, § 23) and G.S. 8-54, which provides that no person charged with a crime may be compelled to testify or “answer any question tending to criminate himself.” This rule rests on the notion that allowing extended reference by the court or counsel concerning the defendant’s failure to testify would “nullify the policy that failure to testify should not create a presumption against the defendant.” State v. Randolph, 312 N.C. 198, 206 (1984).
The prohibition against such remarks encompasses even those that parrot the pattern jury instructions by acknowledging that a defendant may elect not to testify and that such an election may not be used against him. See State v. Reid, 334 N.C. 551, 554 (1993). Thus, when a prosecutor makes such remarks and the defendant objects, the trial court must undertake curative measures to inform the jury both that the remarks were improper and that the defendant’s failure to testify may not be used against him. Id. at 556. If the trial court fails to take such remedial measures and an appellate court deems the error prejudicial, a new trial will be ordered. Id. at 557. The Court of Appeals applied these principles recently in State v. Grant, No. COA23-656, ___ N.C. App. ___ (2024).
Case Summaries – N.C. Supreme Court (August 13, 2021)
This post summarizes criminal decisions released by the Supreme Court of North Carolina on August 13, 2021.
Facial Recognition, Biometric Identification, and the Fifth Amendment
Apple just introduced the iPhone X, a new high-end smartphone. The phone can be unlocked using facial recognition, just as current iPhones can be unlocked using a fingerprint scanner. According to Forbes, the phone “uses a combination of light projectors and sensors to take several images of your facial features,” then compares the face of a person seeking to unlock the phone to the “depth map” it has created.
I wrote here and here about the Fifth Amendment implications of fingerprint scanners. The few courts that have addressed the issue have mostly agreed that a suspect can’t be required to provide the passcode to a phone, absent unusual circumstances, because that would violate the Fifth Amendment’s privilege against self-incrimination. However, courts mostly have held that a suspect may be ordered to press a finger to the phone because doing so is not “testimonial” and so is outside the scope of the privilege.
I thought that this would be a good time to consider facial recognition and the Fifth Amendment, and to provide an update on a recent case that reaches a different result than most other decisions to date.
Update on Fingerprints, Phones, and the Fifth Amendment
Can a court order a suspect to use the suspect’s fingerprint to unlock his or her smartphone? Or would that violate the suspect’s Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion.
Can the Police Compel You to Unlock Your Phone Using Your Fingerprint?
I’ve written before about whether a court may order a person to provide a password to a computer or a passcode to a phone to enable an officer to complete a lawful search, such as one pursuant to a search warrant. But passwords and passcodes are so old-fashioned. The cool kids are all using biometric data like fingerprints to secure their devices. So, may a person be required to unlock his or her device using a biometric identifier? Yes, said one court recently.
Field Sobriety Testing and the Fifth Amendment
Most drivers stopped on suspicion of impaired driving are asked to submit to field sobriety tests before they are arrested. Those tests often include the three standardized tests, which researchers have found to enhance officers’ ability to accurately identify impairment: the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Officers sometimes use other types of field tests that have not been validated, such as asking participants to recite the alphabet or to conduct counting exercises. Evidence gained from any of these pre-arrest tests may be admitted against the defendant at trial without running afoul of the Fifth Amendment right to be free from self-incrimination. That’s because suspects aren’t in custody for purposes of the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) when they are temporarily detained for a traffic stop and are asked a moderate number of stop-related questions. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Braswell, 222 N.C. App. 176 (2012). But what if the suspect is asked to perform field sobriety tests after he is arrested? Must he first be provided Miranda warnings?
Herndon v. Herndon and Pleading the Fifth
[Author’s note: The North Carolina Supreme Court in Herndon v. Herndon, 368 N.C. 826 (2016), reversed the court of appeals’ decision discussed below. The state supreme court held that the trial court’s actions did not amount to a constitutional violation. The court concluded that the defendant did not invoke the privilege against self-incrimination and the trial court inquired into matters that were within the scope of the defendant’s testimony on direct examination.]
A recent court of appeals decision has stirred up a lot of discussion on our hall about the scope of the Fifth Amendment right to be free from self-incrimination. The case is Herndon v. Herndon, __ N.C. App. __ (October 6, 2015), and it arose from a defendant’s appeal from the entry of a domestic violence protective order against her. Before the defendant testified in the hearing to determine whether acts of domestic violence occurred, the presiding judge cautioned the defendant’s attorney: “I’m not doing no Fifth Amendment.” There’s really no question that the warning was, as one appellate judge put it, “less than artful,” but did it violate the defendant’s rights?
The Eighth Circuit Considers Implied Consent, but I Still Haven’t Found What I’m Looking For
I admit that I may have a problem. I am dedicated to (perhaps obsessed with) the pursuit of a legal theory that satisfactorily squares the doctrine of implied consent with the Fourth Amendment. A thousand Westlaw searches later, I have yet to find analysis such an analysis by a court. So I was a little surprised when the United States Court of Appeals for the Eighth Circuit explained earlier this summer that the Supreme Court determined more than thirty years ago in South Dakota v. Neville, 459 U.S. 553 (1983), that implied consent testing carried out under threat of license revocation comported with the Fourth Amendment. Did I miss something?
Asserting the Fifth Amendment in Court and the Granting of Immunity to a Witness
The first ten amendments to the U.S. Constitution are commonly known as the Bill of Rights and were ratified on December 15, 1791. It is remarkable how many of these amendments are still resilient today throughout the United States. Their individual freedoms against government interference include: the freedom of speech and religion and the right … Read more