12-09-07 privilege against self

8/8/2019 12-09-07 Privilege Against Self

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PRIVILEGE AGAINST SELF-INCRIMINATION

The Fifth Amendment to the United States Constitution provides, in part,

that no person shall be compelled in any criminal case to be a witness

against himself.

This amendment was made applicable to all states through the Fourteenth

Amendment to the United States Constitution. See: Malloy v. Hogan, 378

U.S. 1, 6 (1964).

This privilege, along with the right to trial by jury and right to confront

ones accuser, form a trilogy of constitutional guarantees which are essential

in safeguarding individual liberties in the American legal system.

The history of the privilege against self-incrimination is probably the most

torturous of this trilogy of constitutional guarantees. The historical strugglesurrounding the establishment of this privilege, involving countless

individual efforts and human sacrifices, brought with it an enlightened

civilization.

THE HISTORY OF THE PRIVILEGE

Mary A. Shein, writing in the Brooklyn Law Review (Summer, 1993),

authored an article entitled The Privilege Against Self-Incrimination Under

Seige: Asherman v. Meachum in which she sketched out the historicalimplications of the privilege. See: 50 Brook.L.Rev. 503. Shein pointed out

that the privilege was adopted in response to a long history of oppression of

the individual by the state and today remains an important shield, protecting

individuals against abuses of state authority. Id.

Speaking to the history of the privilege in American jurisprudence, legal

scholar Leonard Levy echoed Sheins observation by writing that the

framers understood that without fair and regularized procedures to protect

the criminally accused there would be no liberty. They knew that from time

immemorial the tyrants first step was to use the criminal law to crush hisopposition. See: Leonard Levy, Origins of the Fifth Amendment 431

(1968).

The need for the privilege to protect against state-sponsored abuses was

certainly not the sole basis for its creation. There was also a prevalent need

to protect the individual from the horrific inquisitional abuses of the church.


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The famed former Associate Justice of the United States Supreme Court,

Abe Fortas, made this abundantly clear when he wrote: [H]istory

demonstrates that the fight for the privilege against self-incrimination was a

part, and an important part, of the great struggle against the oppression of the

individual by the church and state. See: Abe Fortas, The Fifth Amendment:

Nemo Tenetur Prodere Seipsum, Cleveland Bar Association, 25 The Journal

91, 97 (1954).

A dissenting U.S. Supreme Court justice some six decades before Fortas

observation noted that the Fifth Amendment privilege is the result of a long

struggle between opposing forces of the spirit of individual liberty on the

one hand and the state on the other. See: Brown v. Walker, 161 U.S. 591,

637 (1896)(Field, J., dissenting).

The physical and psychological pain inherent in torture was routinelyinflicted by both the state and the church to extract incriminating evidence

against the individual and others. Torture, therefore, preceded the privilege.

Shein said that the origins of the privilege can be traced back to the twelfth

century. Id., Brook L. Rev. at 505. See also: O. John Rogge, The First &

Fifth 138 (1968); 8 John H. Wigmore, Wigmore on Evidence 2250, at 269-

70 (1961). Levy said that the privilege can be traced back even farther, to

ancient Judaic law. Id., at 433.

Wigmore said the formal inquisition method of prosecution was first

introduced in England by the ecclesiastical courts. Id., 2250 at 269-84.

Under this method, said Levy, the accused individual was forced to take an

oath to provide truthful answers to all questions presented by the court.

Shein said that the individual lacked any meaningful safeguards to protect

him from unfair prosecution. Id., at 506.

A court could interrogate an individual on its own motion and then act as

accuser, prosecutor, judge and jury, Shein wrote. Id., at 506-07. See also:

Mark Berger, Taking the Fifth 1-23 (1980). Berger described what it meant

to be an accused under the inquisitorial system:

The accused was not informed of the charges, his accusers, nor the

evidence against him. He was condemned if he refused to take the oath,

condemned if he supplied the sought-after admissions, and risked perjury if

he failed to tell the truth. In the hands of a skillful interrogator, the

inquisitorial proceeding and oath were extremely powerful tools and nearly


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foolproof in securing the conviction of those against whom they were

directed. Id. at 6.

Rumor and suspicion were sufficient to secure not only a conviction but a

sentence of death by unspeakable methods. The accused faced the Inquisitor

and Bishop. They showed the accused the instruments of torture prior to the

inquisition. The accused was encouraged to confess. If he didnt, he was

stripped and bound before once again encouraged to confess with the

promise of mercy, Standing, bound and naked, before a blood-thirsty crowd,

the accused saw the iron rods being heated, or the pulleys of the rack being

tested. It almost always compelled self-incrimination.

One particularly brutal method of torture was the Oral, Rectal and Vaginal

Pear. This device was inserted into one of the three body cavities, and

expanded by the turn of a screw. Maximum aperture immediately resulted inthe body cavity being mutilated. Sharpened points on the prongs ripped the

throat and intestines apart.

Prior to its revolution, France made inquisition through torture a systemized,

efficient method of inflicting punishment on the wrongdoer. There were only

two forms of torture: ordinary and extraordinary. Ordinary torture consisted

of the accused being lashed, hand and feet, to iron rings in a wall. He was

then hauled up by ropes, effectively racked until all his joints were

dislocated. Extraordinary torture was simple: the accused was forcibly

administered 30 pints of water called the water cure.

Actual execution did not prove to be merciful. The condemned prisoner

was lashed to a wooden cross. The bones in both legs and arms were broken

in two places by the executioner using an iron bar. The prisoner was then left

to die unless the crowd witnessing the execution was unappeased. The

prisoner was then burned on the cross.

Actually it was organized government that paved the way for the privilege

against this kind of forced inquisitorial self-incrimination. While theinquisitorial method of prosecution was introduced by ecclesiastical judges

and adopted by the English common law courts, the Crown repeatedly found

itself at odds with the church and ultimately felt compelled to curtail the

awesome, arbitrary powers of ecclesiastical judges. It was this constant

jurisdictional power struggle between the Crowns civil authorities and the


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church that fueled opposition to the inquisitorial method of prosecution. See:

Shein, Brook L.Rev. at 506.

In 1641 the British Parliament passed a bill that outlawed the use of the ex

efficio oath as an ecclesiastical procedure in any penal matter. Shein, Brook

L.Rev., note 15. The decision by Parliament to abolish the oath came after

Freedom John Lilburn was arrested in 1640 and charged with printing or

importing heretical and seditious books. Freedom John refused to take the

oath or to provide evidence against himself. He was convicted and

condemned to be whipped and pilloried. Lilburn appealed to Parliament. The

House of Commons vacated the sentence calling it illegal and against the

liberty of the subject. Id.

In the wake of the Lilburn case, the Parliament abolished the Court of Star

Chamber and the Court of High Commission for Ecclesiastical Causes allclear evidence that opposition to the inquisitorial system of justice was

increasing. See: Wigmore, 2250, at 283-84. Shein reported that by the end

of the seventeenth century, the privilege against self-incrimination had

firmly entrenched itself in the common law of England. Justice Fortas noted

that the privilege was then imported to the American colonies. Id., Fortas,

note 2 at 97.

as [the Colonies] political and economic systems matured, their legal

systems most strikingly in the field of criminal procedure, began more and

more to resemble that of England, wrote Bernard Levy.

It was not surprising that the American colonies would follow the lead of

England since they had been mostly settled by British subjects. The right

most sacred and fundamental right to these colonists was the legal guarantee

that the individual could not be compelled to give evidence against himself

even though this right sacrificed to the religious hysteria evoked by the

Salem witch trials in 1692.

It was the religious intolerance exhibited during the Salem witch trials thatmade many prominent colonial leaders to realize that the right against self-

incrimination had to be made absolute in the New World.

Other social conditions of colonial life also generated increased opposition

to compulsory self-incrimination, wrote Shein. For example, the Crown

began using increasingly arbitrary means to administer justice in the


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Colonies, and would sometimes torture individuals to extract information

during investigations. Id., Brook L.Rev. at 508.

Following the Revolutionary War and removal of the Crowns yoke, states

like Virginia, Pennsylvania, Maryland, North Carolina, Vermont,

Massachusetts and New Hampshire all included the right against self-

incrimination in their constitutions or bills of rights. Id. Levy pointed out

that during the ratification process of the Federal Constitution, a Bill of

Rights became necessary to allay concerns that the new federal government

would become too powerful. Id. See also: Levy, supra note 2, at 418-21.

Colonial leaders truly believed that the privilege against self-incrimination

was an essential protection necessary to keep a constitutional check on the

new sovereignty of the United States of America. Consequently, both the

1789 Bill of Rights and U.S. Constitution included the right to remain silent.

POLICY REASONS FOR THE SELF-INCRIMINATION PRIVILEGE

1. The cruel trilemma

One basic policy reason for the existence of the privilege against self-

incrimination is that it prevents individuals from being subjected to what the

Supreme Court called cruel trilemma of self-accusation, perjury or

contempt. See: Murphy v. Waterfront Commn of N.Y. Harbor, 378 U.S.

52, 55 (1964)[history and policies of the privilege reviewed]. The Court has

ruled that an individual facing contempt a charge may face similar concerns

as someone facing legal compulsion. See: Pennsylvania v. Muniz, 496 U.S.

582, 596 (1990)[cruel trilemma analogous to legal compulsion]. See also:

Miranda v. Arizona, 384 U.S. 436, 461 (1966)[privilege not only protects

against legal compulsion but also protects from informal compulsion

exerted by law enforcement officials during in-custody questioning].

Muniz and Miranda suggest that it is not the means used to overcome an

individual's will to remain silent that is central to the cruel trilemmarationale, but the element of compulsion, Shein wrote. See: Brook L.Rev.,

note 28.

Legal scholars like Shein have uniformly concluded that it is inherently cruel

to force an accused to be an instrument in his own condemnation. See:

David Louisell, Criminal Discovery and Self-Incrimination: Roger Traynor


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Confronts The Dilemma, 53 Cal. L. Rev. 89, 95 (1965). As Justice Field put

it in Brown v. Walker: The essential and inherent cruelty of compelling a

man to expose his own guilt is obvious to every one and needs no

illustration. It is plain to every person who gives the subject a moment's

thought. Id., at 161 U.S. at 637.

2. Protecting the Accusatorial Process

The privilege against self-incrimination certainly plays what Shein called

an important role in preserving the accusatorial nature of our criminal

justice system. Id., Brook L.Rev. at 510. While the privilege has out-grown

some of the original reasons for its creation, any legislative attempt to

abolish or restrict its application by the judiciary would allow the ancient

seeds of the inquisitorial system to re-emerge at a time when this nation is

suffering through the CIAs secret prisons program and the militarysenemy combatant adjudication proceedings.

The accusatorial process imposes upon prosecutors the absolute burden of

proving guilt beyond a reasonable doubt. This constitutional burden

maintains what John Wigmore called the fair state-individual balance.

See: 8 Wigmore, supra note 8, 2251, at 317. Shein wrote that the

Constitution limits the power of the state where the potential for abuse of

individual rights exists. By including the privilege against self-incrimination

in the Bill of Rights, the framers acknowledged that the power to compel

individuals to incriminate themselves created enough potential for abuse that

it should be limited. The result of such a determination was that the state

would be required to bear the burden of proving its case without the help of

the defendant. Id., note 31.

3. Prevention of compelled self-incrimination

The privilege is designed to protect the individual from physical and

psychological abuse by government officials. See: Murphy, supra, 378 U.S.

at 55. See also: Levy, supra note 2, at 326-27[privilege developed out of thestruggle to eliminate torture as a government practice]. Shein says the

government would inevitably resort to highly coercive techniques to force

information out of suspects without the privilege protection. Id.

Some commentators assert that in the absence of a privilege against self-

incrimination, she write, the government would abuse its power by


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oppressing individuals who hold unpopular religious or political beliefs. See

Friendly, supra note 8, at 696 (The privilege provides a shelter against

governmental snooping and oppression concerning religious and political

beliefs); Berger, supra note 8, at 35 (Compelled self-incrimination, if

tolerated, might well prove to be too tempting a tool for use against minority

views.). Id., Brook L. Rev. at 511.

In its war on terror, the Bush administration has resorted to the abuses

inherent in the inquisitorial system to gather evidence of terrorism. They

abandoned accusatorial system protections, finding them too cumbersome in

the evidence-gathering process. That was precisely the philosophy of the

Inquisitor and Bishop in the 1500s. They felt it was perfectly rational to

compel individuals to incriminate themselves under the real or perceived

threat of torture. Kidnappings, forced interrogations, water boarding, and

unlimited detention without the benefit of due process of law are thebenchmark of an inquisitorial system.

4. The inviolability of individual privacy

Finally, as the Supreme Court said in Murphy, the privilege mirrors

societys respect for the inviolability of the human personality and the right

of each individual to a private enclave where he may lead a private life.

Id., 378 U.S. at 55. See also: United States v. Grunewald, 233 F.2d 556, 581-

82 (2nd Cir. 1956), revd, 353 U.S. 391 (1957). Shein quoted Mark Berger

excellent observation:

Our system of government represents an attempt at accommodating the

often opposing interests of the citizen and the state. In a very general sense,

it accords high regard to the individual and seeks to protect him from

unwarranted state interference. Beyond that it protects the individual against

methods of intrusion that may violate his individuality and integrity, even

though the intrusion itself may be unwarranted. The Fifth Amendment very

clearly promotes these goals and is justified by them. Id., Brook L.Rev. at

511.

The sordid post-WWII history of covert intelligence gathering in America

reflects that the government does not always respect these constitutional

rules. In the 1950s and 1960s the CIA was linked to assassinations of foreign

leaders and the overthrow of legitimately elected foreign governments. The

CIA worked with the mafia, mercenaries, and murderous dictators to pursue


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its intelligence gathering objectives all supposedly designed to protect

American interests.

In the 1960s the FBI under the leadership of the late J. Edgar Hoover

conducted domestic intelligence gathering on prominent Americans which

was used by the director as political blackmail and to satisfy his own

prurient, deviant sexual interests. In the 1970s the CIA during the corrupt

Nixon era joined with the FBI in the nasty business of domestic

surveillance activities of American citizens. Anyone who dared speak

against the government, or the Establishment as it was commonly referred

to, became a target of government surveillance. Not only was the private

lives of many Americans exposed for the wretched purpose of public

embarrassment and ridicule but some of the more radical antagonists were

framed for criminal prosecution while others were assassinated by

government agents.

More recently, the Bush Administration with The Protect America Act of

2007 now has authority to conduct its beloved surveillance activities

without any real judicial oversight. Following the president signature on the

legislative enactment the White House issued a fact sheet that listed the

four ways the new act modernizes the Foreign Intelligence Surveillance

Act of 1978:

The Act permits our intelligence professionals to more effectively

collect foreign intelligence information on targets in foreign landswithout first receiving court approval.

The Act provides a role for the FISA court in reviewing the

procedures the intelligence community uses to ensure that surveillance

efforts target persons located overseas.

The Act provides for the FISA court to direct third parties to assist the

intelligence community in its collection efforts.

The Act protects third parties from private lawsuits arising from

assistance they provide the government.

There is no empirical evidence that The Protect America Act of 2007 will be

used responsibly to detect real terrorist threats emanating from abroad.

Based on past experience not only with this administration but with Nixon

and pre-Nixon administration, the third parties the government plans to

use will be rogues engaged in a plethora of illegal activities. And while the

court authorized under FISA may maintain some limited reviewing role in


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the surveillance process, the White House has clearly circumvented the

courts longstanding constitutional concerns on the issue of probable

cause with this new protect America legislation.

In a recent The New York Times op-ed piece, law professors Jeff Goldsmith

and Neal Katyal proposed what they called a bipartisan measure that

Congress create a Terrorists Court. The law professors wrote that nearly

six years after 9/11, the governments system for detaining terrorists without

charge or trial has harmed the reputation of the United States, disrupted

alliances, hurt us in the war of ideas with the Islamic world and been viewed

skeptically by our own courts. Explaining their proposal, the professors

said the two of us have been on opposite sides of detention policy debates,

but we believe that a bipartisan solution that reflects American values is

possible. A sensible first step is for Congress to establish a comprehensive

system of preventive detention that is overseen by a national security courtcomposed of federal judges with life tenure.

Writing in a guest column for the JURIST, University of Toledo College

of law professor Benjamin Davis reacted indignantly to the Goldsmith and

Katyal proposal: What a sad day! I am amazed! Law professors who are

preventive detention advocates. A National Security Court! Have things

gone this far in this country that people are really mulling seriously the

merits of a preventive detention regime? Is the hysteria this crazy?

The tragic truth is that the terrorist hysteria has become borderline

political insanity. In the aftermath of 9/11, Geneva convention mandates, the

Great Writ of habeas corpus, the FISA court, traditional notions of due

process of law, and the sacred privilege against self-incrimination lay

shattered on the battlefield in the ever-expanding war on terror. Preventive

detention is an inevitable consequence. After all the states of Kansas and

Washington have already embraced laws approved by the U.S. Supreme

Court that authorize the preventive detention of sex offenders determined

to pose a threat to society upon completion of their criminal sentences. So

in this crazy world of real and imagined terrorists threats, it only followsthat law professors like Goldsmith and Katyal would propose Congressional

legislation establishing preventive detention facilities for enemy

combatants and a National Security Court to deal with them.

The tragedy is that terms like The Protect America Act and preventive

detention and National Security Court have been created to support both


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Reconstruction gave to federal constitutional rights and as a response to the

expanding scope of federal law at the end of the nineteenth century. Id.

Boyd v. United States is significant in the history of the privilege because it

was the first judicial decision to find a law unconstitutional on the ground

that it violated the Fifth Amendment privilege against self-incrimination.

Boyd was in business with the federal government providing glass from his

warehouse to be used in the construction of government building. See:

Hazlett, 42 Am.J. Legal Hist. at 252. As part of the deal with the

government, Boyd was allowed to import duty-free the same quantity of

glass that he sold the government. Boyd said that some of his glass was

broken during shipment so felt obliged to import additional glass duty-free.

Id. The government did not believe Boyd, and pursuant to an 1874 statute, it

moved for forfeiture of 35 cases of glass as reimbursement. Id. The statute

allowed the government to forced production of any document it needed tomake its case; therefore, the government subpoenaed invoices for the cases

of glass. Id.

Based on the production of the invoices, the trial court found Boyd guilty of

violating revenue laws. Id., The Supreme Court, however, reversed

Boyds conviction finding that the 1874 statute unconstitutional and void

because it caused an individual to be a witness against himself, within the

meaning of the fifth amendment by compelling production of incriminating

evidence. Id., 116 U.S. at 635.

It was for this reason, Hazlett said, that Boyd constitutionalized the

witness privilege because it applied the Fifth Amendment beyond the

common law privilege rule that protected the individual from answering

incriminating questions in a judicial proceeding. Id., 42 Am.J.Legal Hist. at

252-53. Hazlett added:

On one level, Boyd's holding is shocking in light of prior federal decisions

holding both that the 1874 statute was constitutional and that the witness

privilege had nothing to do with the fifth amendment. Its sharp departurefrom precedent is highlighted when one reads the briefs submitted to the

Supreme Court. Boyd's brief did not argue that the statute violated the fifth

amendment, while the government briefly discussed the cases in the

previous section for the proposition that the law was constitutional.

Precedent clearly went against the Court's outcome in Boyd. Yet, what is

ironic about the Boyd decision is that the Court reached its startling new


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holding by taking a seemingly small step from the reasoning of prior

decisions. The Court held that the civil proceeding against Boyd was close

enough to a forfeiture proceeding against a defendant who committed a

criminal offense that Boyd was entitled to all the protections that a similarly-

situated criminal defendant would enjoy. In other words, the Court

expanded the definition of a criminal trial for the purposes of the fifth

amendment. Although this expansion was a departure from precedent,

applying the privilege against self-incrimination to the newly-defined

criminal trial accorded with prior opinions. Every court had interpreted the

fifth amendment to apply to a defendant in his or her own criminal trial; if

other courts had re-defined criminal trials to include quasi-criminal

forfeiture proceedings, then they would have reached the same outcome the

Boyd Court did.

The Court could have put down its pen after re-defining a criminal trial,held for Boyd, and avoided incorporating the witness privilege into the

constitution. Yet, after expanding the scope of a criminal trial for the

purposes of the fifth amendment, the Court declared that its re-definition did

not bear upon the outcome of the case since [a] witness, as well as a party,

is protected by the law from being compelled to give evidence that tends to

criminate him, or to subject his property to forfeiture. On these grounds, the

Court then declared the law unconstitutional. The common law witness

privilege would have protected Boyd. Congress, however, had abrogated the

common law rule by passing the 1874 statute. Whether Congress was able to

change the law so that it no longer shielded witnesses and parties from

incriminating questions was precisely the issue in Boyd. Lower courts

without exception had affirmed Congress's ability to alter the common law.

The Supreme Court, however, responded to the question Can Congress

abrogate the common law witness privilege? by answering: The common

law protects parties and witnesses from answering incriminating

questions. By replying in this way, the Court effectively declared that

Congress could not alter the common law privilege against self-

incrimination. On what grounds could the court refuse to recognize

Congress's legislative authority? Since Congress clearly had the right to alterthe common law, the privilege against self-incrimination must lie in the

constitution. The Court thus latched onto the language in the fifth

amendment to declare the statute unconstitutional and void. Therefore,

Boyd constitutionalized the witness privilege in order to invalidate

Congress's attempt to abrogate the common law privilege. Id., 42

Am.J.Legal Hist. at 253-54.[Emphasis added]


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Clearly, the colonial leaders who framed the Bill of Rights, as well as the

framers of the Constitution with the Fifth Amendment, both of which

extended to the individual a fundamental right to silence, intended for the

privilege against self-incrimination to be constitutionalized to be beyond

the whim of individual lawmakers in the Congress.

The Boyd decision, therefore, is constitutionally significant because it

reaffirmed the strength of the accusatorial process by emphasizing the

governments absolute burden to prove criminal wrongdoing beyond a

reasonable doubt and not by compelling the individual to produce evidence

against himself.

Evidence gathering in the war on terror has abandoned the historical

underpinnings of Boyd. The government today believes the dangers ofterrorism, actual or perceived, justify inquisitorial methods of evidence

gathering; namely, compelling individuals suspected of terrorism to provide

incriminating evidence against themselves, even by means of torture like

water boarding - what the French in the 1500s called extraordinary

torture.

In September 2006 President Bush finally acknowledged that the CIA

maintained secret prisons or what former CIA Director George Tenet

called an extraordinary rendition program. The president defended

program as being a tough and necessary weapon in the war on terror. The

presidents comments about the program seemed to compare torture to

tough love. He said the interrogation of 14 top al Qaeda suspects,

including Abu Zubaydah, Khalid Sheikh Mohammed, and Ramsi Bin al-

Shibh, uncovered and prevented significant terrorist attacks in the United

States. He cited as an example the alleged terrorist plot to hijack an airplane

and fly it into the Library Tower, the tallest building in Los Angeles.

Pointing out that Zubaydah did not cooperate until the CIA employed what

the president called an alternate set of interrogation procedures, Bush saidthe bin Laden loyalist began to give up other terrorist suspects once the new

interrogation procedures were employed on him.

This [extraordinary rendition] program has been and remains one of the

most vital tools in our war against terrorists, the president calmly said while

casually dismissing the international protests against American torture.


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In addition to Zubaydah, both Ramsi Bin al-Shibh and Khalid Sheikh

Mohammed were quickly broken by the alternate set of interrogation

procedures. Bush pointed out that once in our custody, KSM was

questioned by the CIA using these procedures, and he soon provided

information that helped us stop another planned attack on the United States.

The CIA interrogation procedures involve six escalating steps that ends

with water boarding during which the suspect is made to feel like he is

drowning. Human rights groups have called this procedure torture.

The United States does not torture, the president said, disagreeing with

those groups. Its against our laws, and its against our values. I have not

authorized it, and I will not authorize it.

But the case of Khaled El-Masri contradicts the presidents non-torturestatements. A German citizen of Lebanese descent, El-Masri was traveling

in Macedonia in December 2003 when he was taken into custody by that

nations law enforcement officials on some technicality concerning his

passport. They held El-Masri in their custody for twenty-three days at a hotel

in Skopje before turning him over to American CIA operatives. That began

an odyssey of torture for El-Masri and an official plundering of time-

honored principles of law set forth in this nations Bill of Rights and its

Constitution by the CIA.

CIA operatives flew El-Masri in a private plane to a secret CIA-operateddetention facility in Kabul, Afghanistan. He was beaten, drugged, bound,

and blindfolded during this transport. He remained confined in this CIA

torture facility until May 2004. Held in a small, dirty cell, El-Masri was

subjected to repeated interrogations and was not allowed to contact his

family or the German government.

Finally, on May 28, 2004 El-Masri was transported by the CIA to Albania

and released on a hill in a remote area. He was then picked up by Albanian

officials who took him to an airport in Tirana where he was put on a flight toGermany.

In December 2006 El-Masri filed a lawsuit against former CIA Director

George Tenet, unnamed CIA employees, and private individuals who

provided resources and transports to the intelligence agency. El-Masri

charged that he had been abducted, detained, and tortured pursuant to the


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extraordinary rendition program devised by Tenet. The El-Masri lawsuit

charged that this program permits the CIA to secretly abduct and detain

persons outside of the United States suspected of being involved in terrorist

activities. He said the abductees are detained in secret prisons, routinely

tortured, and held completely incommunicado. He said it is an American

policy of terror implemented to fight the Bush-declared war on terror.

The Government quickly intervened in the lawsuit that was filed in the

United States District Court for the Eastern District of Virginia. The

Government said that El-Masris lawsuit could not proceed because it

posed an unreasonable risk that privileged state secrets would be disclosed.

The District Court granted the Governments motion to dismiss the

lawsuit based on what is known as the state secrets doctrine.

El-Masri applied to the United States Supreme Court for review, and onOctober 9, 2007 the court denied El-Masris petition. The Court cited its

1953 decision that recognized the common-law state secrets privilege. In

that case a military plane crashed in Georgia and family members of three

civilians who died in the crash brought a civil lawsuit against the

government. Attorneys for the family members requested a copy of the flight

accident report during the discovery process of that lawsuit. The government

refused to disclose the report claiming that it contained information about

secret military equipment being tested during the fatal crash. The court

agreed with the government, saying the report was protected from disclosure

by the state secrets privilege.

The reason the American government today is operating secret prisons,

utilizing an alternative set of interrogation procedures like water boarding,

and warehousing enemy combatants without due process rights in a Cuba

detention facility is because the constitutional legacy of Boyd v. United

States would not permit this inquisitorial method of evidence gathering. Not

even the state secrets doctrine could conceal in a criminal trial process the

constitutional violations such inquisitorial methods produce.

THE CURRENT STATE OF THE LAW


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The Fifth Amendment protects a person against being incriminated by

his own compelled communications. See: Fisher v. United States, 425 U.S.

391, 409 (1976).

The Supreme Court has established a three-prong criteria necessary to

trigger Fifth Amendment protections: the individuals statement or act must

(1) be compelled, (2) be testimonial, and (3) incriminate the individual in a

criminal proceeding. See: United States v. Hubbell, 530 U.S. 27, 34-35

(2000).

This Fifth Amendment protection permits a criminal defendant to refuse to

testify at 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. See:

Minnesota v. Murphy, 465 U.S. 420, 426 (1986)[quoting Lefkowitz v.Turley, 414 U.S. 70, 77 (1973)].

The year before Lefkowitz the Supreme Court in Kastigar v. United States

held that the Fifth Amendment applies in any proceeding to disclosures that

the witness reasonably believes could be used [against him/her] in a criminal

prosecution or could lead to other evidence that might be so used. See: 406

U.S. 441, 445 (1972).

The Fifth Amendment protects only communications that are compelled. For

example, the Supreme Court in Estelle v. Smith held that a criminaldefendants admissions during a court-ordered psychiatric examination were

not given freely and voluntarily without any compelling influences, and,

therefore, his Fifth Amendment guarantee was violated. See: 451 U.S. 454,

468-69 (1981). See also: Powell v. Texas, 492 U.S. 680, 681 (1989)(per

curiam)[defendants Fifth Amendment protection triggered during court-

ordered psychiatric examination pertaining to future dangerousness].

The Court, however, has ruled that inadmissible evidence from a psychiatric

examination is admissible to rebut a criminal defendants mental-status

defense without offending the Fifth Amendment protection . See: Buchanan

v. Kentucky, 483 U.S. 402, 423-24 (1987).

The U.S. Supreme Court has refused to find a Fifth Amendment violation in

the following situations lacking compulsion:


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No Fifth Amendment violation in Ohios voluntary interview relating

to clemency request because inmate testimony not compelled. See:

Ohio Adult Parole Auth. V. Woodward, 523 U.S. 272, 286 (1998).

No Fifth Amendment violation when criminal defendant made

incriminating statements to cellmate who was an undercover agent

because statements not compelled. See: Illinois v. Perkins, 496 U.S.

292, 293 (1990).

No Fifth Amendment violation when government subpoena was

issued to third party because the target of investigation was not

compelled to produce any materials. See: SEC v. Jerry T. OBrien,

Inc., 467 U.S. 735, 742 (1984)

What is compelled communication?

The Supreme Court in Doe v. United States said a compelledcommunication must be testimonial and to be considered testimonial the

communication must itself, explicitly or implicitly, relate a factual assertion

or disclose information [that expresses] the contents of an individuals

mind. See: 487 U.S. 201, 210 n. 9 (1988): See also: United States v.

Hubbell, supra, 530 U.S. at 34-35; Fisher v. United States, supra, 425 U.S. at

409.

The burden to prove a compelled communication is testimonial rests with

the party invoking the Fifth Amendment privilege protection. See: In re

Foster, 188 F.3d 1259, 1270 (10th Cir. 1999)

The government is afforded a great deal of latitude in conducting its

investigations because of the difference between testimonial and non-

testimonial communications. The following investigatory tactics do not

offend the Fifth Amendment because they were deemed non-testimonial:

Compelling a defendant to reenact a robbery. See: Avery v. Procunier,

759 F.2d 444, 448 (5th Cir. 1985).

Compelling a defendant to shave either mustache or beard during trial

to assist in identification. See: United States v. Valenzuela, 722 F.2d

1431, 1433 (9th Cir. 1983).

Compelling a defendant to try on clothes to demonstrate fit. See: Holt

v. United States, 218 U.S. 245, 253-53 (1910).

Compelling a defendant to dye hair. See: United States v. Brown, 920

F.2d 1212, 1215 (5th Cir. 1991).


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Compelling DWI defendant to demonstrate slurred speech and lack of

coordination on videotape. See: Pennsylvania v. Muniz, 496 U.S. 582,

592 (1990).

Compelling defendant to provide handwriting sample. See: Gilbert v.

California, 388 U.S. 263, 266-67 (1967).

Compelling defendant to provide hair sample. See: United States v.

Dougall, 919 F.2d 932, 935 (5th Cir. 1990).

Compelling defendant to provide fingerprints. See: Kyger v. Carlton,

146 F.3d 374, 381 (6th Cir. 1998).

Compelling defendant to have his or her teeth and gums examined.

See: United States v. Maceo, 873 F.2d 1, 5-6 (1st Cir. 1989).

Compelling defendant to submit to blood-alcohol. See: Schmerber v.

California, 384 U.S. 757, 765 (1966).

Compelling defendant to submit to breathalyzer. See: Deering v.

Brown, 839 F.2d 539, 541-44 (9th Cir. 1988). Compelling defendant to submit to urine tests. See: United States v.

Edmo, 140 F.3d 1289, 1292-93 (9th Cir. 1998).

Compelling prison inmate to provide DNA sample. See: Shaffer v.

Saffle, 148 F.3d 1180, 1181 (10th Cir. 1998).

The Supreme Court established the guide for determining a Fifth

Amendment violation more than 50 years ago when it held that the

individual must have a reasonable belief that the compelled testimony would

either support a conviction or provide a link in the chain of evidence that

would lead to a conviction. See: Hoffman v. United States, 341 U.S. 479,

486 (1951). See also: United States v. Hubbell, supra, 530 U.S. at 39.

Once a criminal defendant invokes the Fifth Amendment privilege and

refuses to testify, the prosecutor, the judge, or a co-defendants counsel are

prohibited from making adverse comments about the refusal to testify. See:

Griffin v. California, supra, 380 U.S. at 611-12 (1965). See also: United

States v. Al-Muqsit, 191 F.3d 928, 937 (8th Cir. 1999).

Further, a defendant enjoys a right to have the trial judge instruct the jurythat no inference of guilt can be drawn by a defendants decision not to

testify. See: Carter v. Kentucky, 450 U.S. 288, 305 (1981). But once a

defendant elects to testify, he must do so honestly and be prepared to answer

questions on cross-examination reasonably related to matters put at issue

through his testimony. See: Brogan v. United States, 522 U.S. 398, 404

(1998); Mitchell v. United States, 526 U.S. 314, 321 (1999),


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The issue of when a defendant can contribute to the defense is more

complex. For example, a defendant may have truth on his side but a long

criminal history. The prosecution will exploit a criminal history to its

advantage. The perils of a criminal history background are often too great

for a defense attorney to traverse; therefore, he can not risk allowing the

defendant to testify. Such strategic decisions must be made on a case-by-

case basis involving a number of variables: the nature and extent of the

defendants criminal history; the strength/weakness of the prosecutions

case; the defendants verbal ability to convey his side of the story while

being able to withstand withering cross-examination; and the nature of the

testimony by witnesses presented by the defense before a decision is made

about the defendant testifying.

Famed Houston criminal defense attorney Dick DeGuerin recently facedthese variables in the murder trial of David Temple. Temple was convicted

on November 15 for the shotgun slaying of his eight-month pregnant wife.

Temple testified at trial in his own defense. Following the jury verdict, a

number of jurors informed DeGuerin that they had been influenced by

Temples testimony as well as the testimony of his family members. On at

least one occasion prosecutor Kelly Siegler caught Temple in conflicting

testimony.

The prosecutions theory was that Temple killed his wife in order to marry

his mistress with whom he had been romantically involved months before

his wife was killed. Temple ultimately married the mistress following his

wifes murder. The mistress/second wife testified at Temples trial, saying

that he had pledged his love to her before the murder of his wife. Under

cross-examination, Temple testified that he had never made such a pledge to

the mistress.

It was that contradiction, and the general manner in which Temple presented

the rest of his testimony, that prompted the jurors to tell DeGuerin that they

did not believe his client.

If a jury does not believe a testifying defendant, it doesnt matter what the

rest of the evidence shows, said veteran Houston defense attorney Jack

Zimmerman after the trial.


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DeGuerin obviously believed that his client was innocent and that he needed

to convey that fact personally to the jury from the witness stand. That was a

legitimate strategical decision made prior to the trial. But the tactic

apparently failed after Temples family performed so badly on the witness

stand before Temple testified. Temples own follow-up poor performance

ultimately convinced the jury that Temple was lying about not killing his

wife and that his family were lying to protect him. That is the inherent

danger of allowing the defendant to testify.

CONCLUSION

The Supreme Court in Ullmann v. United States, 350 U.S. 422 (1956)

stressed the constitutional relevance and societal necessity of the privilege

against self-incrimination:

It is relevant to define explicitly the spirit in which the Fifth Amendment's

privilege against self-incrimination should be approached. This command of

the Fifth Amendment (nor shall any person * * * be compelled in any

criminal case to be a witness against himself * * *) registers an important

advance in the development of our liberty one of the great landmarks in

man's struggle to make himself civilized.' Time has not shown that

protection from the evils against which this safeguard was directed is

needless or unwarranted. This constitutional protection must not be

interpreted in a hostile or niggardly spirit. Too many, even those who should

be better advised, view this privilege as a shelter for wrongdoers. They too

readily assume that those who invoke it are either guilty of crime or commit

perjury in claiming the privilege. Such a view does scant honor to the

patriots who sponsored the Bill of Rights as a condition to acceptance of the

Constitution by the ratifying States. The Founders of the Nation were not

naive or disregardful of the interests of justice. The difference between them

and those who deem the privilege an obstruction to due inquiry has been

appropriately indicated by Chief Judge Magruder:

Our forefathers, when they wrote this provision into the Fifth Amendmentof the Constitution, had in mind a lot of history which has been largely

forgotten to-day. See VIII Wigmore on Evidence (3d ed. 1940) s 2250 et

seq.; Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1

(1949). They made a judgment, and expressed it in our fundamental law, that

it were better for an occasional crime to go unpunished than that the

prosecution should be free to build up a criminal case, in whole or in part,


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with the assistance of enforced disclosures by the accused. The privilege

against self-incrimination serves as a protection to the innocent as well as to

the guilty, and we have been admonished that it should be given a liberal

application If it be thought that the privilege is outmoded in the

conditions of this modern age, then the thing to do is to take it out of the

Constitution, not to whittle it down by the subtle encroachments of judicial

opinion. Id., 350 U.S. at 426-28.

These observations were made by the Supreme Court more than fifty years

ago. They are as applicable today as they were five decades ago. The threat

of terrorism, and Americas determination to wage a global war to

eradicate it places the Fifth Amendment privilege against self-incrimination

on the endangered constitutional rights list. The Church (and the State)

during the Inquisition waged war on heresy; it was a crime worse than

terrorism, and the Bishop and the King justified any means necessary tostamp it out. The proponents of todays war on terrorism use the same

justifications to stamp out terrorists. The end result is that the crusade

against evil becomes more evil than evil itself. History remembers the

Inquisition but pays little attention to heresy. The same will prove true with

the war on terror.

12-09-07 privilege against self

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