This post summarizes criminal decisions released by the Supreme Court of North Carolina on August 13, 2021.
Tag Archives: 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. Continue reading →
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. Continue reading →
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. Continue reading →
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? Continue reading →
[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? Continue reading →
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?
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 to peaceably assemble (First Amendment); the right to keep and bear arms (Second Amendment); the protection against unreasonable searches and seizures (Fourth Amendment); double jeopardy and due process protections, the prohibition against compelled self-incrimination, and compensation for private property taken for public use (Fifth Amendment); the right to counsel, speedy and public trial, impartial jury, confronting witnesses, and compulsory process to obtain witnesses (Sixth Amendment); and the protections against excessive bail and fines and cruel and unusual punishments (Eighth Amendment). This post focuses on the Fifth Amendment self-incrimination provision in the courtroom and the granting of immunity to a witness to compel testimony.
The Fifth Amendment privilege protects a person against compelled self-incrimination. A similar privilege exists in section 23 of Article I of the North Carolina Constitution, which has not been interpreted more expansively than the Fifth Amendment. While the privilege protects a person against compelled testimony and similar communications, it does not against compelled nontestimonial acts such as submitting to fingerprints, photographs, and sobriety testing, speaking for identification, appearing in lineups, and giving blood samples. See e.g., Schmerber v. California, 384 U.S. 757, 764-65 (1966) (withdrawal and chemical analysis of blood did not implicate defendant’s “testimonial capacities” and thus did not violate Fifth Amendment). The privilege may be invoked in any proceeding, civil or criminal, including a criminal investigation. It protects against any compelled disclosures that a person reasonably believes could be used in a criminal prosecution or could lead to the discovery of other evidence that might be used in a prosecution. Kastigar v. United States, 406 U.S. 441, 444-45 (1972). When a witness invokes the privilege, the trial court must determine whether it may be “reasonably inferred” that the answer may be incriminating, and the invocation should be “liberally construed.”
A criminal defendant has the right under the Fifth Amendment privilege to decline to take the stand. If a defendant decides not to testify, the State or a judge may not call the defendant to the stand, and a codefendant may not call the defendant to the stand at their joint trial. However, a defendant who voluntarily takes the stand and testifies in his or her own behalf cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination. When a defendant exercises his or her Fifth Amendment privilege by not testifying at trial, any reference by the State or the trial court about the defendant’s election not to testify violates the Fifth Amendment.
A witness who is not a criminal defendant has the right under the Fifth Amendment privilege to refuse to answer a question if: (1) the answer may tend to incriminate the witness; (2) the witness is not immune from prosecution; and (3) the witness has timely invoked the privilege in response to a question. However, a witness who testified on direct examination cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination.
A judge has the discretion whether (1) to advise a witness of his or her right not to answer incriminating questions, and (2) to allow the State or the defendant to call a witness to invoke the privilege before the jury.
A witness who invokes the Fifth Amendment privilege against self-incrimination in any criminal or civil hearing or proceeding, including a grand jury, may be ordered to testify or produce other information when the witness has been granted immunity under Article 61 of Chapter 15A. Although an order granting immunity may be issued in any criminal or civil matter, only a district attorney is authorized to apply for an order, and the application must be made before a superior court judge. G.S. 15A-1052(a). Thus, almost all applications involve criminal proceedings.
If the State later prosecutes the immunized witness, it has the burden of proving at the later trial that its evidence was obtained completely independent of the compelled testimony or information provided by the immunized witness. Although the standard of the burden of proof has not been decided by North Carolina appellate courts, they likely would follow federal law and require proof by a preponderance of evidence. United States v. Slough, 641 F.3d 544, 550 (D.C. Cir. 2011).
This has been a brief overview. If you are interested in a more detailed discussion, you may access my recently-published section, “Fifth Amendment Privilege and Grant of Immunity,” in the North Carolina Superior Court Judges’ Benchbook, which is available here.
Several years ago, I blogged about a case in which the government sought to compel a criminal defendant to provide the password to his encrypted computer, or at least, to provide an unencrypted copy of the contents of his hard drive. You can read that post here.
It’s time to revisit the topic, for two reasons. One, Gizmodo International Change Your Password Day was last week. (Try finding a Hallmark card for that!) You can read about how the editors of Gizmodo handle password security here. They have a range of different approaches, almost none of them as apathetic as mine, and some of which actually seem manageable. Anyhow, the point is, passwords are on my mind. Two, there’s a new court decision on point: United States v. Fricosu, from the District of Colorado.
In a nutshell, the FBI executed a search warrant at Ramona Fricosu’s house. The court’s opinion doesn’t describe what the agents were looking for, but it appears that they were investigating fraudulent real estate transactions. They seized, among other things, a laptop computer with an encrypted hard drive. The government couldn’t break the encryption, so it filed a motion with the court, asking it to order Fricosu to enter the password and decrypt the drive. Fricosu responded that, under the Fifth Amendment, she could not be “compelled . . . to be a witness against himself,” and so could not be required to provide the password or a decrypted copy of the drive.
The United States District Judge hearing the case ruled for the government, essentially following the reasoning in the Boucher case about which I wrote previously. The judge stated that although the Fifth Amendment sometimes protects the “act of production” of incriminating evidence, there was no Fifth Amendment concern in this case because (1) the government already knew that the hard drive existed and its location, so Fricosu was not being asked to produce anything the government didn’t already know she had, and (2) “the government ha[d] offered . . . Fricosu immunity, precluding it from using her act of producing the unencrypted contents of the laptop computer against her.” Accordingly, the court ordered Fricosu to provide the government with an unencrypted copy of the contents of the laptop.
As an interesting aside, Fricosu now claims that she has forgotten the password. Hmm. Since the judge has already found that the laptop was hers and that she had the ability to decrypt it, it seems as though Fricosu may end up being held in contempt of court. You can read more about the case here and here, and can read a critical analysis by the Electronic Frontier Foundation here.
Normally, field sobriety tests are administered before an arrest is made, as part of an officer’s investigation into a possible DWI. In that case, it’s clear that the officer need not read the driver his Miranda rights before administering the tests. The driver isn’t in custody — he’s just the subject of a traffic stop — and Miranda warnings are required only for custodial interrogation. Sometimes, however, an officer will administer field sobriety tests after arresting the driver. In such a case, must the officer give the Miranda warnings before administering the tests?
I was recently asked that very question. The court of appeals has answered in the negative, concluding that “the physical dexterity tests are not evidence of a testimonial or communicative nature . . . and are not within the scope of the Miranda decision.” State v. Flannery, 31 N.C. App. 617 (1976). Although Flannery appears to be the only published appellate case on point in North Carolina, out of state cases uniformly agree. See, e.g., Campbell v. State, 325 S.W.3d 223 (Tex. Ct. App. Ft. Worth 2010) (“[S]obriety tests yield physical evidence of a suspect’s mental and physical faculties, and thus the results are not testimonial evidence that implicates Miranda.”); Commonwealth v. Cameron, 689 N.E.2d 1365 (Mass. App. Ct. 1998) (holding that “[b]ecause field sobriety tests have been held not to elicit testimonial . . . evidence, they do not trigger the protections” of Miranda).
It probably follows from the foregoing, but our courts have also held that Miranda warnings need not be given before administering a breathalyzer. State v. White, 84 N.C. App. 111 (1987).