Fifth Amendment at trial

Georgetown Law Journal, Jun 1998 by Solomon, Matthew

invoking Fifth Amendment privilege because testimony compelled) and U.S. v. Hardwell, 80 F3d 1471, 1484 (lOth Cir. 1996) (Fifth Amendment violation when prosecution used financial affidavits and statements prepared by defendant to establish eligibility for appointed counsel as evidence of guilt because preparation of statements created conflict between defendant's Fifth and Sixth Amendment rights).

1910. 451 U.S. 454 (1981).

1911. Id. at 468-69; accord Powell v. Texas, 492 U.S. 680, 681 (1989) (per curiam) (statements made during court-ordered psychiatric examination relating to future dangerousness of defendant protected by Fifth Amendment privilege).

1912. Smith, 451 U.S. at 468-69. Compare Jones v. McCotter, 767 F.2d 101, 102-03 (Sth Cir. 1985) (per curiam) (Fifth Amendment violated by admitting testimony of examining psychiatrist regarding future dangerousness of defendant at punishment stage when no prior warning given that statements made during exam might be used) with Woomer v. Aiken, 856 F.2d 677, 681-82 (4th Cir. 1988) (no Fifth Amendment violation by admission of psychiatric testimony on defendant's future dangerousness when defendant advised of right to remain silent at psychiatric examination).

1913. Smith, 451 U.S. at 468-69 (quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)); see Williams v. Chrans, 945 F.2d 926, 952 (7th Cir. 1991) (no Fifth Amendment violation by admission of testimony from presentence interview when defendant requested interview after consulting with attorney and knew that purpose of interview was to prepare for capital sentencing phase of trial); Presnell v. Zant, 959 F.2d 1524, 1533-34 (llth Cir. 1992) (no Fifth Amendment violation by admission of testimony from psychiatrist in court-ordered examination when defense counsel received ample notice of state's intent to seek examination and opportunity to inform defendant of right against self-incrimination). But see Woods v. Johnson, 75 F.3d 1017, 1033 (Sth Cir.) (admission of testimony given at sentencing stage by psychiatrist who examined defendant for competency purposes without adequate Miranda warning or assistance of counsel erroneous, but found not to have "substantial and injurious effect or influence in determining the jury's verdict"), cert. denied, 117 S. Ct. 150 (1996); U.S. v. Bogle, 114 F.3d 1271, 1275 (D.C. Cir.) (no Fifth Amendment violation by admission of testimony from defendant's conversation with police about a crime for which he was not a suspect but during which defendant spontaneously confessed), cert. denied, 118 S. Ct. 350 (1997).

1914. 483 U.S. 402 (1987).

1915. Id. at 423-24; accord Powell, 492 U.S. at 684 (reaffirming holding in Buchanan that otherwise inadmissible psychiatric testimony is admissible to rebut mental-status defense); see Savino v. Murray, 82 F.3d 593, 604 (4th Cir.) (no Fifth Amendment violation when prosecution's mental health expert testified as to defendant's future dangerousness when defendant introduced psychiatric evidence in support of mitigation claim at penalty phase), cert. denied, 117 S. Ct. 1 (1996); Granviel v. Lynaugh, 881 F.2d 185, 189-90 (Sth Cir. 1989) (no Fifth Amendment violation when prosecution introduced psychiatric reports from defendant's examining psychiatrists to rebut defendant's introduction of psychiatric testimony in her mental-status defense); Sturgis v. Goldsmith, 796 F.2d 1103, 1107-08 (9th Cir. 1986) (no Fifth Amendment violation when government introduced psychiatric testimony at trial because defendant informed court of intention to offer insanity defense); Trujillo v. Sullivan, 815 F.2d 597, 615 (lOth Cir. 1987) (no Fifth Amendment violation when government permitted to use psychiatric report from previous trial because defendant raised insanity defense at present trial); Strickland v. Linahan, 72 F.3d 1531, 1536-37 (llth Cir.) (no Fifth Amendment violation when court permitted prosecution to cross-examine psychiatrist about information revealed by defendant to psychiatrist but not discussed in direct examination), cert. denied, 117 S. Ct. 41 (1996).