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cts against derivative use of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena). other hand, to foreclose the States from compelling testimony because they could not immunize a witness in a subsequent ‘‘foreign’’ prosecution would severely limit state law enforcement efforts. Therefore, the Court emphasized the ‘‘use’’ restriction rationale of Counselman and announced that as a ‘‘constitutional rule, a state witness could not be compelled to incriminate himself under federal law unless federal authorities were precluded from using either his testimony or evidence derived from it,’’ and thus formulated a use restriction to that effect. 234 Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indicated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was ‘‘in principle an attractive and apparently practical resolution of the difficult problem before us,’’ citing Murphy with apparent approval. 235 Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only. 236 Soon tested, this statute was sustained in Kastigar v. United States. 237 ‘‘[P]rotection coextensive with the privilege is the degree of protection which the Constitution requires,’’ wrote Justice Powell for the Court, ‘‘and is all that the Constitution requires. . . .’’ 238 ‘‘Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being ‘forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.’ Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00045 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1406 AMENDMENT 5—RIGHTS OF PERSONS 239 406 U.S. at 453. Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use ban was constitutionally adequate. Id. at 462, 467. Justices Brennan and Rehnquist did not participate but Justice Brennan’s views that transactional immunity was required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dissenting). See also New Jersey v. Portash, 440 U.S. 451 (1979) (prosecution use of defendant’s immunized testimony to impeach him at trial violates self-incrimination clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of perjury. United States v. Apfelbaum, 445 U.S. 115 (1980). See also United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564 (1976). Because use immunity is limited, a witness granted use immunity for grand jury testimony may validly invoke his Fifth Amendment privilege in a civil deposition proceeding when asked whether he had ‘‘so testified’’ previously, the deposition testimony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983). 240 Boyd v. United States, 116 U.S. 616 (1886). But see Fisher v. United States, 425 U.S. 391 (1976). 241 See discussion supra under ‘‘Development and Scope.’’ 242 Shapiro v. United States, 335 U.S. 1, 33 (1948), (quoting Davis v. United States, 328 U.S. 582, 589–90 (1946), (quoting in turn Wilson v. United States, 221 U.S. 361, 380 (1911))). Wilson is the source of the required-records doctrine in its dicta, the holding in the case being the familiar one that a corporate officer cannot claim the privilege against self-incrimination to refuse to surrender corporate records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913). Davis was a search and seizure case and dealt with gasoline ration coupons which were government property even though in private possession. See Shapiro, 335 U.S. at 36, 56–70 (Justice Frankfurter dissenting). protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.’’ 239 Required Records Doctrine.—While the privilege is applicable to an individual’s papers and effects, 240 it does not extend to corporate persons, hence corporate records, as has been noted, are subject to compelled production. 241 In fact, however, the Court has greatly narrowed the protection afforded in this area to natural persons by developing the ‘‘required records’’ doctrine. That is, it has held ‘‘that the privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.’’’ 242 This exception developed out of, as Justice Frankfurter showed in dissent, the rule that documents which are part of the official records of government are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate the regulation of the business being conducted, so the reasoning goes, the records become public at least to the degree that VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00046 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1407 243 335 U.S. at 51. 244 335 U.S. at 32. 245 335 U.S. at 32 246 274 U.S. 259, 263, 264 (1927). Sullivan was reaffirmed in Garner v. United States, 424 U.S. 648 (1976), holding that a taxpayer’s privilege against self-incrimination was not violated when he failed to claim his privilege on his tax returns, and instead gave incriminating information leading to conviction. One must assert one’s privilege to alert the Government to the possibility that it is seeking to obtain incriminating material. It is not coercion forbidden by the clause that upon a claim of the privilege the Government could seek an indictment for failure to file, since a valid claim of privilege cannot be the basis of a conviction. The taxpayer was not entitled to a judicial ruling on the validity of his claim and an opportunity to reconsider if the ruling went against him, irrespective of whether a good-faith erroneous assertion of the privilege could subject him to prosecution, a question not resolved. government could always scrutinize them without hindrance from the record-keeper. ‘‘If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment—to say nothing of State and local legislation—has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume.’’ 243 ‘‘It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the recordkeeper himself.’’ 244 But the only limit which the Court suggested in Shapiro was that there must be ‘‘a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator.’’ 245 That there are limits established by the selfincrimination clause itself rather than by a subject matter jurisdiction test is evident in the Court’s consideration of reporting and disclosure requirements implicating but not directly involving the required-records doctrine. Reporting and Disclosure.—The line of cases begins with United States v. Sullivan 246 in which a unanimous Court held that the Fifth Amendment did not privilege a bootlegger in not filing an income tax return because the filing would have disclosed the illegality in which he was engaged. ‘‘It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.’’ Justice Holmes stated for the Court. VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00047 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1408 AMENDMENT 5—RIGHTS OF PERSONS 247 The expansion of the commerce power would now obviate reliance on the taxing power. 248 United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. United States, 348 U.S. 419 (1955). 249 382 U.S. 70 (1965). 250 382 U.S. at 79. The decision was unanimous, Justice White not participating. The same issue had been held not ripe for adjudication in Communist Party v. SACB, 367 U.S. 1, 105–10 (1961). 251 Marchetti v. United States, 390 U.S. 39 (1968) (occupational tax); Grosso v. United States, 390 U.S. 62 (1968) (wagering excise tax). In Haynes v. United States, 390 U.S. 85 (1968), the Court struck down a requirement that one register a firearm that it was illegal to possess. The following Term on the same grounds the Court voided a statute prohibiting the possession of marijuana without having paid a transfer tax and registering. Leary v. United States, 395 U.S. 6 (1969); United States v. Covington, 395 U.S. 57 (1969). However, a statute was upheld which prohibited the sale of narcotics to a person who did not have a written order on a pre- However, ‘‘[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return . . . .’’ Utilizing its taxing power to reach gambling activities over which it might not have had jurisdiction otherwise, 247 Congress enacted a complicated statute imposing an annual occupational tax on gamblers and an excise tax on all their wages, and coupled the tax with an annual registration requirement under which each gambler must file with the IRS a declaration of his business with identification of his place of business and his employees and agents, filings which were made available to state and local law enforcement agencies. These requirements were upheld by the Court against self-incrimination challenges on the three grounds that (1) the privilege did not excuse a complete failure to file, (2) since the threshold decision to gamble was voluntary, the required disclosures were not compulsory, and (3) since registration required disclosure only of prospective conduct, the privilege, limited to past or present acts, did not apply. 248 Constitutional limitations appeared, however, in Albertson v. SACB, 249 which struck down under the self-incrimination clause an order pursuant to statute requiring registration by individual members of the Communist Party or associated organizations. ‘‘In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form’s questions in context might involve the petitioners in the admission of a crucial element of a crime.’’ 250 The gambling tax reporting scheme was next struck down by the Court. 251 Because of the pervasiveness of state laws prohibiting VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00048 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1409 scribed form, since the requirement caused the self-incrimination of the buyer but not the seller, the Court viewing the statute as actually a flat proscription on sale rather than a regulatory measure. Minor v. United States, 396 U.S. 87 (1969). The congressional response was reenactment of the requirements coupled with use immunity. United States v. Freed, 401 U.S. 601 (1971). 252 Marchetti v. United States, 390 U.S. 39, 48 (1968). 253 ‘‘Every element of these requirements would have served to incriminate petitioners; to have required him to present his claim to Treasury officers would have obliged him ‘to prove guilt to avoid admitting it.’’’ 390 U.S. at 50. 254 ‘‘The question is not whether petitioner holds a ‘right’ to violate state law, but whether, having done so, he may be compelled to give evidence against himself. The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege’s protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who most require it.’’ 390 U.S. at 51. But cf. California v. Byers, 402 U.S. 424, 434 (1971) (plurality opinion), in which it is suggested that because there is no ‘‘right’’ to leave the scene of an accident a requirement that a person involved in an accident stop and identify himself does not violate the self-incrimination clause. 255 Marchetti v. United States, 390 U.S. 39, 52–54 (1968). ‘‘The central standard for the privilege’s application has been whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination . . . . This principle does not permit the rigid chronological distinctions adopted in Kahriger and Lewis. We see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence.’’ Id. at 53–54. Cf. United States v. Freed, 401 U.S. 601, 605–07 (1971). gambling, said Justice Harlan for the Court, ‘‘the obligations to register and to pay the occupational tax created for petitioner ‘real and appreciable,’ and not merely ‘imaginary and unsubstantial,’ hazards of self-incrimination.’’ 252 Overruling Kahriger and Lewis, the Court rejected its earlier rationales. Registering per se would have exposed a gambler to dangers of state prosecution, so Sullivan did not apply. 253 Any contention that the voluntary engagement in gambling ‘‘waived’’ the self-incrimination claim, because there is ‘‘no constitutional right to gamble,’’ would nullify the privilege. 254 And the privilege was not governed by a ‘‘rigid chronological distinction’’ so that it protected only past or present conduct, but also reached future self-incrimination the danger of which is not speculative and insubstantial. 255 Significantly, then, Justice Harlan turned to distinguishing the statutory requirements here from the ‘‘required records’’ doctrine of Shapiro. ‘‘First, petitioner . . . was not . . . obliged to keep and preserve records ‘of the same kind as he has customarily kept’; he was required simply to provide information, unrelated to any records which he may have maintained, about his wagering activities. This requirement is not significantly different from a demand that he provide oral testimony . . . . Second, whatever ‘public aspects’ there were to the records at issue in Shapiro, there are none to the information demanded from Marchetti. The Government’s anxiety to obtain information VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00049 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1410 AMENDMENT 5—RIGHTS OF PERSONS 256 Marchetti v. United States, 390 U.S. 39, 57 (1968). 257 402 U.S. 424 (1971) 258 402 U.S. at 427–31 (Chief Justice Burger and Justices Stewart, White, and Blackmun). 259 ‘‘The California Supreme Court was surely correct in considering that the decisions of this Court have made it clear that invocation of the privilege is not limited to situations where the purpose of the inquiry is to get an incriminating answer . . . . [I]t must be recognized that a reading of our more recent cases . . . suggests the conclusion that the applicability of the privilege depends exclusively on a determination that, from the individual’s point of view, there are ‘real’ and not ‘imagiknown to a private individual does not without more render that information public; if it did, no room would remain for the application of the constitutional privilege. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were imposed in ‘an essentially non-criminal and regulatory area of inquiry’ while those here are directed to a ‘selective group inherently suspect of criminal activities.’ The United States’ principal interest is evidently the collection of revenue, and not the punishment of gamblers, . . . but the characteristics of the activities about which information is sought, and the composition of the groups to which inquiries are made, readily distinguish this situation from that in Shapiro.’’ 256 Most recent of this line of cases is California v. Byers, 257 which indicates that the Court has yet to settle on an ascertainable standard for judging self-incrimination claims in cases where government is asserting an interest other than criminal law enforcement. Byers sustained the constitutionality of a statute which required the driver of any automobile involved in an accident to stop and give his name and address. The state court had held that a driver who reasonably believed that compliance with the statute would result in self-incrimination could refuse to comply. A plurality of the Court, however, determined that Sullivan and Shapiro applied and not the Albertson- Marchetti line of cases, because the purpose of the statute was to promote the satisfaction of civil liabilities resulting from automobile accidents and not criminal prosecutions, and because the statute was directed to all drivers and not to a group which was either ‘‘highly selective’’ or ‘‘inherently suspect of criminal activities.’’ The combination of a noncriminal motive with the general character of the requirement made too slight for reliance the possibility of incrimination. 258 Justice Harlan concurred to make up the majority on the disposition of the case, disagreeing with the plurality’s conclusion that the stop and identification requirement did not compel incrimination. 259 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00050 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1411 nary’ risks of self-incrimination in yielding to state compulsion. Thus, Marchetti and Grosso . . . start from an assumption of a non-prosecutorial governmental purpose in the decision to tax gambling revenues; those cases go on to apply what in another context I have called the ‘real danger v. imaginary possibility standard . . . .’ A judicial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading these opinions as indicating that the ‘inherently-suspect-class’ factor is relevant only as an indicium of genuine incriminating risk as assessed from the individual’s point of view.’’ 402 U.S. at 437–38. 260 402 U.S. at 448–58. The four dissenters argued that it was unquestionable that Byers would have faced real risks of self-incrimination by compliance with the statute and that this risk was sufficient to invoke the privilege. Id. at 459, 464 (Justices Black, Douglas, Brennan, and Marshall). 261 493 U.S. 549 (1990). 262 493 U.S. at 561. By the same token, the Court concluded that the targeted group—persons who care for children pursuant to a juvenile court’s custody order— is not a group ‘‘inherently suspect of criminal activities’’ in the Albertson- Marchetti sense. 263 Bram v. United States, 168 U.S. 532, 542 (1897). However, the Justice thought that where there is no governmental purpose to enforce a criminal law and instead government is pursuing other legitimate regulatory interests, it is permissible to apply a balancing test between the government’s interest and the individual’s interest. When he balanced the interests protected by the Amendment—protection of privacy and maintenance of an accusatorial system—with the noncriminal purpose, the necessity for self-reporting as a means of securing information, and the nature of the disclosures required, Justice Harlan voted to sustain the statute. 260 Byers was applied in Baltimore Dep’t of Social Services v. Bouknight 261 to uphold a juvenile court’s order that the mother of a child under the court’s supervision produce the child. Although in this case the mother was suspected of having abused or murdered her child, the order was justified for ‘‘compelling reasons unrelated to criminal law enforcement’’: concern for the child’s safety. 262 Moreover, because the mother had custody of her previously abused child only as a result of the juvenile court’s order, the Court analogized to the required records cases to conclude that the mother had submitted to the requirements of the civil regulatory regime as the child’s ‘‘custodian.’’ Confessions: Police Interrogation, Due Process, and Self- Incrimination ‘‘In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’’’ 263 This language in an 1897 case marked a VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00051 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1412 AMENDMENT 5—RIGHTS OF PERSONS 264 Miranda v. Arizona, 384 U.S. 436 (1966). 265 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id. at § 2266 (McNaughton rev. 1961). It appears that while the two rules did develop separately, they did stem from some of the same considerations, and, in fact, the confession rule may be considered in important respects to be an off-shoot of the privilege against self-incrimination. See L. LEVY, ORIGINS OF THE FIFTH AMENDMENT—THE RIGHT AGAINST SELFINCRIMINATION 325–32, 495 n.43 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 581–84, especially 583 n.25 (1961) (Justice Frankfurter announcing judgment of the Court). 266 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 823 (3d ed. 1940); Developments in the Law—Confessions, 79 HARV. L. REV. 935, 954–59 (1966). sharp if unacknowledged break with the doctrine of previous cases in which the Court had applied the common-law test of voluntariness to determine the admissibility of confessions, and, while the language was never expressly disavowed in subsequent cases, the Court seems nevertheless to have proceeded along due process standards rather than self-incrimination analysis. Because the selfincrimination clause for most of this period was not applicable to the States, the admissibility of confessions in state courts was determined under due process standards developed from common-law voluntariness principles. It was only after the Court extended the self-incrimination clause to the States that a divided Court reaffirmed and extended the 1897 ruling and imposed on both federal and state trial courts new rules for admitting or excluding confessions and other admissions made to police during custodial interrogation. 264 Though recent research tends to treat as oversimplified Wigmore’s conclusion that ‘‘there never was any historical connection . . . between the constitutional clause and the confession-doctrine,’’ 265 the fact is that the contention, coupled with the inapplicability of the self-incrimination clause to the States, was apparently the basis until recently for the Supreme Court’s adjudication of confession cases. The Common Law Rule.—Not until the latter part of the eighteenth century did courts develop a rule excluding coerced confessions from admission at trial; prior to that time, even confessions obtained by torture were admissible. As the rule developed in England and in early United States jurisprudence, the rationale was the unreliability of the confession’s contents when induced by a promise of benefit or a threat of harm. 266 In its first decision on the admissibility of confessions, the Court adopted the common-law rule, stressing that while a ‘‘voluntary confession of guilt is among the most effectual proofs in the law, from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution.’’ ‘‘[T]he presumption upon which weight is given to VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00052 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1413 267 Hopt v. Utah, 110 U.S. 574, 584–85 (1884). Utah at this time was a territory and subject to direct federal judicial supervision. 268 Pierce v. United States, 160 U.S. 335 (1896); Sparf v. United States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 613 (1896), failure to provide counsel or to warn the suspec

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