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
Tag Archives: self-incrimination
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 →
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 →
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.
Suppose in a robbery case that the State asks the defendant–who does not plan to testify–to stand in the courtroom wearing a mask allegedly worn by the robber. The defense objects on grounds of self-incrimination. How should the court rule?
Case law holds that requiring a defendant to stand or otherwise exhibit himself or herself before the jury is permissible and does not does not violate the privilege against self-incrimination. That privilege “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber v. California, 384 U.S. 757, 764 (1966). The privilege protects a defendant “only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Id. at 761. Furthermore, “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate [the privilege].” Id. at 764; see also 1 Kenneth S. Broun, Brandis & Broun On North Carolina Evidence § 126 (7th ed. 2011) (discussing the privilege against self-incrimination); State v. Suddreth, 105 N.C. App. 122, 127-28 (1992) (requiring the defendant to put on an executioner’s mask similar to one worn by the perpetrator and to stand in front of the jury did not violate the privilege against self-incrimination); United States v. Turner, 472 F.2d 958, 959-60 (4th Cir. 1973) (requiring the defendant to put on a wig and sunglasses to enable the jury to compare his physical appearance with photographs of the bank robber did not violate the defendant’s right against self-incrimination). Nor does this procedure violate the due process clause of the federal or state constitutions. State v. Perry, 291 N.C. 284, 291 (1976).
This procedure is sometimes called a view of the person and has been allowed in a variety of circumstances, including:
- to show the presence or absence of scars; State v. Sanders, 280 N.C. 67, 71 (1971) (at the prosecutor’s request the defendant was required to remove his shirt and undershirt to impeach his testimony that the victim cut him with a razor-like instrument); State v. Foster, 293 N.C. 674, 683 (1977) (not error to allow the jury to view scars from accomplice’s wounds allegedly inflicted by the victim);
- to speak a word or phrase for purposes of voice identification in court; State v. Locklear, 117 N.C. App. 255, 258-60 (1994) (defendant was asked to speak the words allegedly used during the crime); State v. Thompson, 129 N.C. App. 13, 20-21 (1998) (same; citing Locklear).
- to wear a mask or other disguise; Perry, 291 N.C. at 288-92 (defendant required to put on an orange stocking mask allegedly worn by the perpetrator); Suddreth, 105 N.C. App. at 127-28 (1992) (defendant required to put on an executioner’s mask like one worn by the attacker).
- to display teeth; State v. Summers, 105 N.C. App. 420, 422-23 (1992) (defendant required to display his teeth in a case where the victim described the assailant as a person with missing teeth).
Sometimes the view pertains to someone other than the defendant. For example, State v. Green, 55 N.C. App. 255, 257 (1981), indicates that a child may be exhibited to show a resemblance to the alleged father in a case involving the father’s failure to support an illegitimate child.
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).
Suppose that an eyewitness testifies for the state on direct examination that he saw the defendant snatch an old woman’s purse and run off. The defense cross-examines the witness about whether he’d used drugs shortly before the crime took place, hoping to show that the witness’s perception was impaired. If the witness asserts his Fifth Amendment privilege against self-incrimination, how should the court respond? Allowing the witness to assert the privilege unfairly limits the defendant’s right to confront and cross-examine the witness, but compelling the witness to answer unfairly requires the witness to incriminate himself.
Cases and commentators have suggested a variety of possible responses, including (1) permitting the witness to assert the privilege, (2) permitting the witness to assert the privilege, but striking some or all of the witness’s direct examination testimony in response, (3) permitting the witness to assert the privilege, but allowing the fact-finder to infer that the answer to the question would have been incriminating, and (4) requiring the witness to answer, on the theory that the witness waived the privilege by testifying on direct examination. The proper response may vary depending on whether the witness is also a party, e.g., the defendant, and on the nature of the question posed, e.g., whether the question relates to the facts of the case or only to the credibility of the witness. No single North Carolina case sets out a comprehensive approach to this issue, but we do have several relevant cases that provide some guidance.
A defendant who chooses to take the stand waives the privilege and may be compelled to answer relevant questions on cross-examination. Brown v. United States, 356 U.S. 148 (1958). The Brown Court held that a defendant who elects to take the stand is subject to cross-examination about matters “made relevant by her direct examination.” Id. at 154. The defendant’s decision to testify amounts to a Fifth Amendment waiver, and “the breadth of his waiver is determined by the scope of relevant cross-examination.” Id. at 154-55. Lesser remedies, such as striking the defendant’s testimony, also appear to be proper, in the court’s discretion. Id. at 156 n.5. However, the waiver is not limitless: it does not extend to collateral matters relevant only to credibility. For example, if a defendant on trial for assault were asked on cross-examination about an unrelated fraud he perpetrated – a specific instance of dishonest conduct about which a court may permit cross-examination under Rule 608(b) – he could assert his Fifth Amendment privilege. As Rule 608(b) makes clear, “[t]he giving of testimony, whether by an accused or by any other witness, does not operate as a waiver o the privilege against self-incrimination when examined with respect to matters which relate only to credibility.” Of course, whether a particular question is “made relevant by . . . direct examination” or “relate[s] only to credibility” may be a difficult issue in some instances, but the basic legal principles are fairly clear.
Under Brown, a non-party witness does not waive the privilege by testifying, at least if he or she is compelled to do so. (Whether a non-party witness who testifies without being subpoenaed waives his privilege by testifying is not clear from Brown.) Therefore, such a witness may not be compelled to provide incriminating answers on cross examination. However, if the cross examination concerns a non-collateral matter, his direct examination testimony may be stricken as a result of his assertion of the privilege; this is a matter of fairness to the opposing party, which is otherwise deprived of the right to cross examine. State v. Ray, 336 N.C. 463 (1994). If the witness asserts the privilege in connection with a collateral matter relevant only to credibility, Ray appears to say that striking the witness’s direct examination testimony is not proper. Furthermore, State v. Patterson, 59 N.C. App. 650 (1983), appears to indicate that the fact-finder should not be allowed to draw any inference from the witness’s assertion of the privilege. That leaves the opposing party without a remedy when a witness invokes the Fifth Amendment as a shield against cross-examination addressed to credibility, a state of affairs criticized by some commentators. Of course, most fact-finders will probably go ahead with the prohibited inference anyhow, so the lack of a remedy may be more apparent than real.
Let’s return to the example from the beginning of this post. When the state’s eyewitness asserts the privilege in response to defense counsel’s question about drug use, what should happen? Assuming that the witness is under subpoena, he hasn’t waived the privilege by testifying on direct, and so can’t be compelled to answer. But because the question goes to the witness’s ability to perceive, not merely his credibility, it concerns a non-collateral matter, and the court may strike some or all of the witness’s direct examination testimony as a result.