Fifth Amendment at trial

Georgetown Law Journal, Jun 1998 by Solomon, Matthew

The Fifth Amendment "protects a person .. . against being incriminated by his own compelled, testimonial communications." 1906 To receive Fifth Amendment protection, a person's statement or act must (1) be compelled; (2) be testimonial; and (3) incriminate the person in a criminal proceeding. The protection enables a defendant to refuse to testify at a criminal trial, and "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."1907 Only individuals may assert the privilege; the Fifth Amendment does not protect artificial entities such as corporations.1908

Compulsion. The Fifth Amendment protects only communications that are compelled.1909 In Estelle v. Smith,1910 the Supreme Court held that the admission of incriminating statements made during the course of court-ordered psychiatric examinations violated the Fifth Amendment because the statements were not "given freely and voluntarily without any compelling influences."1911 Such statements are admissible at trial only if the government first advises the defendant that she has the right to remain silent,1912 and she then knowingly waives the right.1913 Nonetheless, in Buchanan v. Kentucky,1914 the Supreme Court held that otherwise inadmissible evidence from a psychiatric examination is admissible to rebut the defendant's proof of a mental-status defense.1915

The Fifth Amendment privilege does not extend to an individual's voluntarily prepared personal papers because the element of compulsion is lacking.1916 Similarly, there is no compulsion when a person is required to reveal potentially incriminating information on a voluntarily submitted application form.1917 Depositions given in civil actions and voluntary grand jury testimony are not compelled and therefore may also be admitted at a defendant's subsequent criminal trial.1918

Testimonial Communication. To receive Fifth Amendment protection, a compelled communication must be testimonial. In Doe v. United States,1919 the Supreme Court held that in order to be considered testimonial, a "communication must itself, explicitly or implicitly, relate a factual assertion or disclose information" that expresses "the contents of an individual's mind." 1920

The distinction between testimonial and nontestimonial communication affords the government a great deal of freedom in conducting investigations. The government may, for example, compel a person to reenact a crime;1921 shave a beard or mustache;1922 try on clothing;1923 dye her hair;1924 demonstrate speech or other physical characteristics;1925 furnish handwriting samples,1926 hair samples,1927 or fingerprints;1928 have her teeth and gums examined;1929 or submit to a bloodalcohol,1930 breathalyzer,1931 or urine test,1932 or provide DNA samples.1933

Although the contents of voluntarily prepared papers are not protected by the Fifth Amendment, the act of producing such documents is protected if the act itself is both testimonial and incriminating.1934 In other words, when the very act of producing information takes on testimonial and incriminating characteristics, such as the verification of a document's existence or accuracy, the act is protected by the Fifth Amendment. Nonetheless, if such verification is unnecessary because the document's existence and accuracy are already apparent, then the act is not testimonial and not covered by the privilege.1935 The Supreme Court has applied this "act of production" doctrine to the production of people.1936

The Fifth Amendment privilege does not apply to a custodian of corporate records who claims that the act of producing corporate records will incriminate her personally; however, the government may not use the act against her as an individual.1937 Self-Incrimination. Finally, the Fifth Amendment right attaches only when a person's compelled testimony is self-incriminating.1938 In Hoffman v. United States,1939 the Supreme Court held that compelled testimony is self-incriminating when reasonable cause exists to believe that a direct answer would support a conviction or provide a link in the chain of evidence leading to a conviction.1940

To be self-incriminating, the compelled answers must pose a "substantial and `real,' and not merely [a] trifling or imaginary, hazard" of criminal prosecution.1941 The Fifth Amendment does not, however, protect testimony that might become incriminating through future conduct.1942

Defendant's Right to Refuse to Testify. The Fifth Amendment guarantees the criminal defendant an unqualified right to choose whether or not to testify at trial.1943 When a defendant chooses not to testify, the Fifth Amendment generally prohibits the prosecutor,1944 trial judge,1945 and counsel for a co-defendant1946 from making any direct adverse comment during the trial about the defendant's decision not to testify. The prosecutor may comment on the defendant's failure to testify only if invited by the actions of the defense counsel.1947 Indirect commentary on a defendant's silence is not considered a violation of the Fifth Amendment, unless the prosecutor intended the statement to be a comment on the defendant's refusal to testify, or the jury would naturally and necessarily interpret the statement as such a comment.1948 Even when an improper comment on the defendant's silence is made in violation of the Fifth Amendment, the improper comment is subject to harmless error analysis and will constitute harmless error if the comment beyond a reasonable doubt did not contribute to the verdict.1949