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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

FIFTH AMENDMENT (088)

Also see Admissions and Confessions; Immunity.

 

Basics

Defendants

Witnesses

Prosecutor's comments

Juvenile cases

Documents

Specimens, exemplars and examinations

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy or life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Basics

State v. Smith, 172 Ohio App. 3d 735, 2007-Ohio-6355 – Judge‘s comments at sentencing indicated appellant received an increased sentence because he had chosen to testify against his brother. Reversed.

State v. Bare, 153 Ohio App. 3d 193, 2003-Ohio-3062 -- False statements to a police officer are not protected under the Fifth Amendment privilege against self-incrimination. ¶ 26: "While this entitles a person accused or suspected of a criminal offense to remain silent, with impunity, it does not confer a privilege to lie."

Chavez v. Martinez (2003), 123 S.Ct. 1994 -- Statements compelled by police interrogation may not be used against a defendant in a criminal trial, but the Self-Incrimination Clause is not violated until such use is intended. This means at least the commencement of legal proceedings. Victim of brutal interrogation at a hospital was not prosecuted, but sought damages in a 1983 action.

Hiibel v. Sixth Judicial District Court of Nevada (2004), 124 S.Ct. 2451 -- Nevada statute requiring the subject of a Terry stop to furnish a name survives Fourth and Fifth Amendment challenges. Unlike the Texas statute in Brown v. Texas (1979), 443 U.S. 47 there has to be reasonable suspicion the subject was involved in criminal activity. Unlike the statute in Kolender v. Lawson (1983), 461 U.S. 352 requiring "credible and reliable" identification, the subject only had to provide a name. The Fifth Amendment claim is fielded by reserving for another time how to address situations where "furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense."

In re D.S., 111 Ohio St. 3d 361, 2006-Ohio-5851 -- A full disclosure polygraph examination is not a reasonable term of juvenile community control absent evidence it is particularly suited to the facts of the offense. ¶19: "The Fifth Amendment prohibits compelling a person on community control who claims privilege to give answers that might incriminate him in future criminal proceedings. Minnesota v. Murphy (1984), 465 U.S. 420, 426." Reverses In re D.S., 160 Ohio App. 3d 552, 2005-Ohio-1803. privilege.

State v. Echols (1998), 128 Ohio App. 3d 677, 701-702 -- The Fifth Amendment right to counsel guarantee rests on not being forced to become a witness against oneself. The Sixth Amendment right to counsel is premised on the guarantee to the accused to have counsel for his defense.

Holt v. United States (1910), 218 U.S. 245 -- The Fifth Amendment does prevent a defendant being directed to put on a blouse for identification purposes. At p. 251: "...(T)he prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material."

United States v. Balsys (1998), 524 U.S. 666 -- Concern about possible prosecution in a foreign country is beyond the scope of the Fifth Amendment. Resident alien did not want to answer questions concerning WWII activities in Lithuania.

Lawn v. United States (1958), 355 U.S. 339 -- An indictment, valid on its face, is not subject to challenge on the basis that the grand jury acted on information obtained in violation of the defendant's privilege against self-incrimination. But see United States v. Calandra (1974), 414 U.S. 338 at 346: "...the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. Rather, the grand jury may override a Fifth Amendment claim only if the witness is granted immunity co-extensive with the privilege against self-incrimination. Kastigar v. United States (406 U.S. 441) Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him. Boyd v. United States 116 U.S. 616, 633-635 (1886). Cf. Couch v. United States, 409 U.S. 322 (1973).

United States v. Licavoli (9th Cir. 1979), 604 F. 2d 613, 623 --Waiver of the Fifth Amendment privilege when testifying before a grand jury does not constitute waiver of the privilege at trial or in other proceedings. Also see United States v. Cain (1st Cir. 1976), 544 F. 2d 113, 117; United States v. Housand (2d Cir. 1977), 550 F. 2d 818, 821 fn. 3; United States v. Johnson (1st Cir. 1973), 488 F. 2d 1206; United States v. Lawrenson (4th Cir. 1963), 315 F. 2d 612.

Shrader v. Equitable Life (1983), 10 Ohio App. 3d 277 -- (1) A party to a civil proceeding does not waive his Fifth Amendment privilege merely by bringing the action. (2) The privilege is waived to the extent questions on direct examination are answered, though when a party is called as on cross the extent of the waiver is more narrowly defined.

Marchetti v. United States (1968), 390 U.S. 39 -- Defendant was prosecuted for failure to register and pay occupational tax on gambling proceeds. Compliance would have generated records which would have been incriminating. Fifth Amendment privilege available in these circumstances. Also see Grosso v. United States (1968), 390 U.S. 62; Shapiro v. United States (1948), 335 U.S. 1.

State v. Wardlow (1985), 20 Ohio App. 3d 1 -- Prosecution of a mother under the endangering children statute for failure to report conduct amounting to a felony violation of other portions of the statute was constitutionally defective as it would have amounted to self-incrimination.

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Defendants

Garrity v. New Jersey (1967), 385 U.S. 493 – Under the New Jersey forfeiture of office statute, exercise of the Fifth Amendment privilege against self-incrimination could cost public employees their positions. Police officers complied with the statute, but the resulting statements were made under duress and could not be used against them in a state criminal proceeding.

State v. Groszewski, 183 Ohio App. 3d 718, 2009-Ohio-4062 – City employee showed up for work and left driving a city truck. Reports indicated he might be under the influence, so he was ordered back to the depot and taken to a hospital for testing in accordance with his contract, which specified a refusal could cost him his job. Test results were admissible for Fifth Amendment purposes, but the statements he made at the hospital were coerced and inadmissible, applying Garrity v. New Jersey (1967), 385 U.S. 493. However, the test results are suppressible as a Fourth Amendment violation, as without the statements obtained in violation of the Fifth Amendment, officers did not otherwise have probable cause.

State v. Jackson, 125 Ohio St. 3d 218, 2010-Ohio-621 – Police officer on administrative leave had a gun when he was involved in a bar fight. He made a Garrity statement in the presence of another officer who later testified before the grand jury. Trial prosecutor also had access to the statement. Applying the test of Kastigar v. United States (1972), 406 U.S. 441, the prosecution neither denied any use of the defendant’s immunized testimony, nor affirmatively demonstrated all of the evidence to be used at trial was derived from wholly independent sources. Remedy is dismissal of the indictment.

In re Knight (1999), 135 Ohio App. 3d 172 -- Child welfare agency called mother as its first witness in a neglect case. Held to be a Fifth Amendment violation as testimony she might provide could subject her to prosecution for child endangering.

McKune v. Lile (2002), 122 S.Ct. 2017 -- Inmate brought 1983 action contending his Fifth Amendment rights were abridged by worsening the terms of confinement upon refusal to admit prior offenses as a part of a prison rehabilitation program. No violation found, even though admissions might lead to further prosecution for uncharged incidents. Admission of responsibility serves a valid penological objective. Loss of privileges deemed not to be compulsion encumbering the constitutional right. 4-1-4 decision. Four dissenters and concurring justice believe compulsion for Fifth Amendment purposes is broader than the "atypical and significant hardship" standard adopted in evaluating due process claims concerning prison conditions.

Mitchell v. United States (1999), 526 U.S. 314 -- Pursuant to Federal Rule of Criminal Procedure 11, entry of a guilty plea does not operate as a waiver of the defendant's Fifth Amendment privilege. Nor may the defendant's silence provide the basis for adverse inferences in determining factual issues at the sentencing hearing.

State v. Cook (1983), 11 Ohio App. 3d 237 -- When a potential defendant is called to testify before a grand jury, Miranda type warnings must be given. If during questioning the witness asserts his privilege against self-incrimination, that decision must be honored unless immunity is granted or an effective waiver is obtained. Grand jury testimony received from a putative defendant without such warning may not be used against him in a subsequent prosecution.

State v. Jackson (1993), 86 Ohio App. 3d 29, 31-32 -- "The right against self-incrimination applies differently depending upon whether it is the witness or the defendant who invokes the Fifth Amendment...Once the defendant has elected to waive the privilege, he may be questioned regarding all matters that were covered on direct and may be subject to searching examination for impeachment purposes...The accused may be cross-examined as to the facts in issue, including his connection with other similar transactions...Although the defendant has taken the stand, he has not entirely waived his Fifth Amendment rights...However, the mere questioning which elicits the assertion of Fifth Amendment rights is not error. Error occurs when the questioning is persistent and the answers are preordained..." (citations omitted)

State v. Taylor (1992), 80 Ohio App. 3d 601 -- At initial appearance defendant was told counsel would be appointed. Subsequently, he mistook a detective for appointed counsel and made admissions. Held that regardless of the defendant's or detective's claims concerning this contact, any interrogation once the right to counsel had been invoked was improper unless initiated by the defendant. Minnick v. Mississippi (1990), 498 U.S. 146, applied.

United States v. Kordel (1970), 397 U.S. 1 -- A corporation does not have a Fifth Amendment privilege, thought its officers and employees may exercise their privilege as individuals.

State v. Lackey (1981), 3 Ohio App. 3d 239 -- Where police officers relying on broadcast would have been entitled to conduct a Terry frisk for weapons, asking the subject first where the gun was did not violate privilege against self-incrimination.

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Witnesses

Ohio v. Reiner (2001), 532 U.S. 17 -- A witness has a valid Fifth Amendment privilege, even though they maintain innocence of any wrongdoing. "...(T)ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth."

State v. Reiner 93 Ohio St. 3d 601, 2001-Ohio-1800 -- In circumstances where either a state's witness or the defendant was responsible for shaking a child who died as a result, it was improper for the state to obtain a grant of immunity for the babysitter. Absent immunity the babysitter would have exercised her Fifth Amendment privilege and refused to testify. The jury should have been permitted to hear her exercise the privilege "and to evaluate her testimony on that basis." The grant of immunity prejudiced the defense by endorsing her claim she was innocent. Also see State v. Reiner 89 Ohio St. 3d 342, 2000-Ohio-190.

State v. Goff, Summit App. No. 21320, 2005-Ohio-339 -- On remand from the U.S. Supreme Court following the decision in Crawford v. Washington (2004), 124 S.Ct. 1354. Wife's statements to the police were not subject to cross, thus not admissible, though her exercise of the Fifth Amendment privilege made her unavailable as a witness. Accord: Davis v. Washington (2006), 126 S.Ct. 2266.

State v. Palmer, 148 Ohio App. 3d 246, 2002-Ohio-3536, ¶4 -- "When a co-defendant has pleaded guilty, but has not yet been sentenced, he may properly assert his Fifth Amendment privilege, as the plea-bargaining process has not yet been completed."

State v. Moody, Franklin App. No. 02AP-353, 2003-Ohio-950 -- Defendant wanted to call as a witness his brother who had already pled guilty to the offenses being tried. The brother did not retain a Fifth Amendment privilege, but error may not be found as defense counsel was also of the view that the privilege remained, thus either failing to object appropriately or inviting error.

State v. Childress (1990), 66 Ohio App. 3d 491 -- Constitutional (Miranda type) warnings are sometimes required when a witness appears before a grand jury. Witness called before the same grand jury a second time, and charged with perjury on that basis, should have been advised of her privilege to refuse to answer questions which might further incriminate her.

State v. Prato (1965), 2 Ohio App. 2d 115 -- Headnote 2: "A witness, who, in answer to a subpoena of a grand jury, has been granted immunity under (former) sections 2945.44 and 2917.04 Revised Code, and who has properly invoked the constitutional guarantees against self-incrimination..., cannot be compelled to answer questions which might be self-incriminating, where the grant of immunity is not coextensive with the scope of the privilege against self-incrimination."

State v. Dinsio (1964), 176 Ohio St. 460 -- Syllabus: "In a criminal case, where a claim of a witness that he can not be compelled to testify as a witness because of the privilege of immunity from self-incrimination is properly established, it is error prejudicial to the defendant for the court to permit counsel for the state, by continued questioning of the witness, which questions go unanswered, to get before the jury innuendoes and inferences of facts, conditions and circumstances which the state could not get before the jury by direct testimony of the witness."

State v. Kirk (1995), 72 Ohio St. 3d 564 -- The right to compulsory process is not denied when the court prevents a witness who intends to exercise his Fifth Amendment privilege from taking the stand, if that witness will exercise the privilege and offer no testimony. Columbus v. Cooper (1990), 49 Ohio St. 3d 42, limited. The defendant is entitled to a an instruction that the jury is to draw no inference from the absence of the witness because the witness was not available to either side. Also see State v. Branham (1995), 104 Ohio App. 3d 355, 360-361.

United States v. Smith (C.A.D.C. 1973), 478 F. 2d 976 -- It was improper for the prosecutor to advise a defense witness that he should confer with independent counsel before testifying to determine whether to exercise his Fifth Amendment privilege, since if he testified as indicated by others, he might be prosecuted for carrying a concealed weapon, obstructing justice and as an accessory. If advice as to the privilege was required, it should have come from the bench. Compare State v, Schaub (1976), 46 Ohio St. 2d 25.

State v. Miller (1997), 122 Ohio App. 3d 111 -- Trial court erroneously refused to allow the defendant to reopen his case when a subpoenaed witness appeared at the courthouse after the jury had been instructed, but before deliberations had begun. Though the witness indicated she would exercise her Fifth Amendment privilege to any question other than her name, the trial had evolved in such a manner that her nonappearance created strong inferences against the defense.

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Prosecutor's comments

State v. Beebe, 172 Ohio App. 3d 512, 2007-Ohio-3746 -- Prosecutor's references to Fifth Amendment exercise and non-exercise amounted to misconduct. Reversed notwithstanding judicial intervention.

Griffin v. California (1965), 380 U.S. 609 -- The prosecutor may not comment upon a defendant's failure to testify as to matters which he could reasonably be expected to deny or explain. Compare Article I, Sec. 10 of the Ohio Constitution which allows the parties to comment upon the exercise of the privilege against self-incrimination by a witness. Except as applied to defendants, this continues in effect.

United States v. Robinson (1988), 485 U.S. 25 -- There is no violation of a defendant's Fifth Amendment privilege when a prosecutor's assertion in argument that the defendant could have taken the stand was a "fair response" to assertions by defense counsel that the government had unfairly denied him an opportunity to explain his actions. Also see State v. Washington (June 20, 1978), Franklin Co. App. No. 77AP-947, unreported (1978 Opinions 1619, 1627-1630); State v. Auerbach (1923), 108 Ohio St. 96; United States v. Tasto (5th Cir. 1978), 586 F. 2d 1068.

Carter v. Kentucky (1981), 450 U.S. 288 -- A defendant is entitled to a jury instruction that no adverse inferences are to be drawn from his exercise of his right not to testify. Also see State v. Fannings (1982), 1 Ohio St. 3d 19.

State v. Lane (1976), 49 Ohio St. 2d 77, 86 -- Griffin viewed as prohibiting only direct comment upon the accused's failure to testify.

State v. Neal (January 23, 1996), Franklin Co. App. No. 95APA05-542, unreported (1996 Opinions 177, 203) -- Mention in voir dire that defendant might or might not testify not found to be a Griffin violation.

Doyle v. Ohio (1976), 426 U.S. 610 -- Use of post arrest silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. For additional cases see Admissions and Confessions.

State v. Nichols (June 26, 1979), Franklin Co. App. No. 79AP-57, unreported (1979 Opinions 1699) -- It is improper to ask a defendant why he refused to sign a constitutional rights waiver form. Also see State v. Stephens (1970), 24 Ohio St. 2d 76; Gillison v. United States (1968), 399 F. 2d 586. Compare State v. Perryman (1976), 49 Ohio St. 2d 14, 20 -- Waiver made, but privilege asserted after detectives told defendant what co-conspirators had said.

State v. Saunders (1994), 98 Ohio App. 3d 355 -- Comment that the defendant did not tell the police she acted in self-defense found to be a Fifth Amendment violation. See Doyle v. Ohio (1976), 426 U.S. 610. Since was first mentioned in closing argument, do not reach issue whether or not defendant had been advised of Miranda rights before elected to remain silent. See Fletcher v. Weir (1982), 455 U.S. 603.

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Juvenile cases

In re Billman (1993), 92 Ohio App. 3d 279 -- Juvenile Court dependency finding reversed and remanded where parent had been compelled to testify despite asserting her Fifth Amendment privilege.

In re Johnson (1996), 106 Ohio App. 3d 38 -- Error to permit prosecutor to ask unrepresented juvenile if he would stipulate prior conviction without first advising him of his Miranda rights.

In re Amanda W. (1997), 124 Ohio App. 3d 136 -- Permanent commitment resulted following parents failure to meet case plan requirement that they acknowledge the father has sexually abused their daughter. Requirement found to violate Fifth Amendment rights of both parents. Admission as a part of counselling would have been reported pursuant to R.C. 2151.421 and no immunity from prosecution had been offered.

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Documents

Doe v. United States (1988), 487 U.S. 201 -- Order directing suspect to sign forms consenting to release of foreign bank documents not contrary to the Fifth Amendment. Signing was not the equivalent of testimonial communication.

Andressen v. Maryland (1976), 427 U.S. 463 -- Seizure of business records containing statements defendant had voluntarily reduced to writing was not a violation of the Fifth Amendment.

State v. Aronson (1993), 91 Ohio App. 3d 714 -- Indicted defendants successfully moved to quash grand jury subpoenas for business records of bingo operation which had not been located during the execution of search warrants. While as custodians of the records they could be compelled to produce them, the state was required to first make some showing that the requested documents were in the subpoenaed party's possession or subject to his control. Otherwise, compliance with the subpoena could amount to self-incrimination.

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Specimens, exemplars and examinations

Schmerber v. California (1966), 384 U.S. 757 -- The Fifth Amendment privilege does not extend to the drawing of a blood sample for purposes of chemical analysis. Also see State v. Sapsford (1983), 22 Ohio App. 3d 1 (dental casts, photos, wax impressions).

South Dakota v. Neville (1983), 459 U.S. 553 -- Admission of evidence that the defendant refused to submit to a blood alcohol test did not violate the Fifth Amendment, though the defendant had only been warned that under the state's implied consent law, refusal could lead to a loss of his license. Also see State v. Starnes (1970), 21 Ohio St. 3d 38 -- Implied consent law does not violate Fourth or Fifth Amendments.

United States v. Wade (1967), 388 U.S. 218 -- Compelling an accused to participate in a lineup does not violate the privilege against self-incrimination.

Gilbert v. California (1967), 388 U.S. 263 -- Handwriting exemplars are not subject to the Fifth Amendment privilege against self-incrimination. Also see State v. Flinn (1982), 7 Ohio App. 3d 294; United States v. Mara (1973), 410 U.S. 19 (exemplar may be compelled pursuant to grand jury subpoena).

United States v. Dionisio (1973), 410 U.S. 1 -- The compelled display of identifiable physical characteristics infringes no interest protected by the Fifth Amendment. A person may be subpoenaed to appear before a grand jury and furnish a voice exemplar. Also see State v. Sutton (1979), 64 Ohio App. 2d 105.

State v. Naylor (1980), 70 Ohio App. 2d 233 -- Headnote: "Where the defendant is required to repeat, over objection, words and sentences used during the progress of a crime by one of the perpetrators of that criminal act, and where the defendant is required to speak those words and sentences in the presence of the jury for the express purpose of allowing the victim of the crime to arrive at an in-court identification of the speaker, such a requirement is violative of the defendant's rights under both the Fifth and Fourteenth Amendments to the United States Constitution."

In re Grand Jury Directive to Creager (1993), 89 Ohio App. 3d 672 -- Defendant was properly found in contempt for refusal to provide a handwriting exemplar. The privilege against self-incrimination under the Ohio Constitution is identical to that found in the Fifth Amendment.

Estelle v. Smith (1981), 451 U.S. 454 -- The Fifth Amendment extends to statements made to an examiner at a court ordered psychiatric evaluation to determine competency to stand trial, and to the use of any statements obtained, at either the guilt or penalty phase of a death penalty prosecution. For statements to be used, Miranda warnings must have been given. Note that R.C. 2945.38(J) states: "No statement made by a defendant in an examination or hearing relating to his competence to stand trial shall be used in evidence against him on the issue of guilt in any criminal action."

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