Also known as: testimonial compulsions · compelled testimony · compelled self-incrimination
Written by attorneys — see sources below.
The government compulsion of an individual to communicate information drawn from the contents of the mind that may tend to incriminate the individual in a criminal proceeding. The protection applies only when the evidence is testimonial in character rather than physical or real evidence obtained without communicative acts by the accused.
Theodore Tucker was taken to the station after a traffic stop and questioned for two hours about a robbery while officers withheld any advice of rights. His detailed answers supplied the only direct link to the crime. Because the questioning occurred in custody and produced testimonial statements without warnings, the statements cannot be introduced at trial.
Tracy Torres received a state grand-jury subpoena requiring her to testify about her role in preparing documents later alleged to be fraudulent. She asserted the privilege on the ground that truthful answers would expose her to criminal liability. The state court must honor the claim because the Fifth Amendment privilege applies to state proceedings through the Fourteenth Amendment.
Tyler Taylor was arrested for driving under the influence and a nurse drew a blood sample at the hospital on police order. The chemical analysis revealed an illegal blood-alcohol level. The results are admissible because the extraction and testing involved no communicative act by Taylor and therefore did not constitute testimonial compulsion.
Petitioner Schmerber and a companion had been drinking at a tavern and bowling alley on November 12, 1964. Petitioner was driving from the bowling alley about midnight when the car skidded, crossed the road, and struck a tree. Both petitioner and his companion were injured and taken to a hospital for treatment. A police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath and testified that petitioner's eyes were bloodshot, watery, and sort of a glassy appearance. The officer saw petitioner again at the hospital within two hours of the accident and noticed similar symptoms of drunkenness. He thereupon informed petitioner that he was under arrest and that he was entitled to the services of an attorney, that he could remain silent, and that anything he told the officer would be used against him in evidence. At the direction of a police officer, a blood sample was then withdrawn from petitioner's body by a physician at the hospital. The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication. The report of this analysis was admitted in evidence at the trial. Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test. Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor. The Appellate Department of the California Superior Court rejected petitioner's contentions and affirmed the conviction. The Supreme Court granted certiorari.
Tanya Tang, a journalist, was subpoenaed to identify a confidential source who supplied documents showing judicial bribery. She moved to quash on First Amendment grounds. The court denied the motion because the First Amendment does not create a privilege that overrides the ordinary testimonial obligation to appear and answer relevant questions before a good-faith grand jury.
In November 1969, Paul Branzburg, a staff reporter for the Courier-Journal newspaper in Louisville, Kentucky, published an article describing his observations of two individuals synthesizing hashish from marijuana in Jefferson County. The article included a photograph and stated that Branzburg had promised not to reveal the identities of the two. He was subsequently subpoenaed by the Jefferson County grand jury and refused to identify the individuals he had observed. A state trial court ordered him to answer, and the Kentucky Court of Appeals denied his petition for relief. In January 1971, Branzburg published a second article detailing drug use in Frankfort, Kentucky, based on interviews with several dozen users over two weeks. He was subpoenaed by the Franklin County grand jury to testify about violations of drug statutes. The Court of Appeals denied the requested writs and rejected his First Amendment claim. This Court granted certiorari. In July 1970, Paul Pappas, a television newsman-photographer, was assigned to cover civil disorders in New Bedford, Massachusetts, involving the Black Panthers. He entered Panther headquarters under an agreement not to disclose what he saw or heard inside except for an anticipated police raid, which did not occur. Two months later, he was summoned before the Bristol County grand jury but refused to answer questions about his observations inside the headquarters. The Massachusetts Supreme Judicial Court held that he must appear and testify. In February 1970, Earl Caldwell, a New York Times reporter covering the Black Panther Party in San Francisco, received a subpoena to appear before a federal grand jury investigating possible violations of federal law by the group, including threats against the President. The District Court denied the motion to quash but issued a protective order. Caldwell refused to appear and was held in contempt. The Court of Appeals reversed, recognizing a qualified privilege. This Court granted certiorari and consolidated the cases.
Tyrone Tran was pulled over for a broken taillight and asked routine questions about his travel plans while still in his vehicle. The officer did not place Tran in custody or deliver warnings. Tran's answers are admissible because the brief roadside encounter did not rise to the level of custodial interrogation that triggers the need for warnings before testimonial statements may be used.
On the evening of March 31, 1980, Trooper Williams of the Ohio State Highway Patrol observed respondent's car weaving in and out of a lane on Interstate Highway 270. After following the car for two miles, Williams forced respondent to stop and asked him to get out of the vehicle. When respondent complied, Williams noticed that he was having difficulty standing. At that point, Williams concluded that respondent would be charged with a traffic offense and therefore his freedom to leave the scene was terminated. Williams then asked respondent to perform a field sobriety test, commonly known as a balancing test, which respondent could not do without falling. While still at the scene of the traffic stop, Williams asked respondent whether he had been using intoxicants. Respondent replied that he had consumed two beers and had smoked several joints of marijuana a short time before. Respondent's speech was slurred, and Williams had difficulty understanding him. Williams thereupon formally placed respondent under arrest and transported him in the patrol car to the Franklin County Jail. At the jail, respondent was given an intoxilyzer test to determine the concentration of alcohol in his blood. The test did not detect any alcohol whatsoever in respondent's system. Williams then resumed questioning respondent to obtain information for the Alcohol Influence Report. Respondent answered affirmatively a question whether he had been drinking. When then asked if he was under the influence of alcohol, he said, "I guess, barely." Williams next asked respondent to indicate on the form whether the marihuana he had smoked had been treated with any chemicals. In the section of the report headed "Remarks," respondent wrote, "No ang[el] dust or PCP in the pot. Rick McCarty." At no point in this sequence of events did Williams or anyone else tell respondent that he had a right to remain silent, to consult with an attorney, and to have an attorney appointed for him if he could not afford one. Respondent was charged with operating a motor vehicle while under the influence of alcohol and/or drugs in violation of Ohio Rev. Code Ann. §4511.19, a first-degree misdemeanor punishable by fine or imprisonment for up to six months with mandatory incarceration for a minimum of three days. Respondent moved to exclude the incriminating statements he had made to Trooper Williams regarding his consumption of alcohol and marijuana on the ground that he had not been informed of his constitutional rights prior to his interrogation. When the trial court denied the motion, respondent pleaded "no contest" and was found guilty. He was sentenced to 90 days in jail, 80 of which were suspended, and was fined $300, $100 of which were suspended. On appeal to the Franklin County Court of Appeals, the court rejected respondent's constitutional claim and affirmed his conviction, relying on a prior decision by the Ohio Supreme Court holding that the rule announced in Miranda is not applicable to misdemeanors. The Ohio Supreme Court dismissed respondent's appeal on the ground that it failed to present a substantial constitutional question. Respondent then filed an action for a writ of habeas corpus in the District Court for the Southern District of Ohio, which dismissed the petition. A divided panel of the Court of Appeals for the Sixth Circuit reversed. The Supreme Court granted certiorari.
Tara Tran appeared under subpoena before a federal grand jury investigating public corruption and invoked the privilege when asked about her own payments from a contractor. After the government granted use and derivative-use immunity, the court ordered her to answer. The compelled testimony may be used against her only if the prosecution shows it was obtained independently of the immunized statements.
In February 1971 petitioners were subpoenaed to appear before a United States grand jury in the Central District of California investigating violations of federal gambling and related laws. The government believed that petitioners were likely to assert their Fifth Amendment privilege against self-incrimination. Prior to the scheduled appearances, the government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U.S.C. §§ 6002-6003. Petitioners opposed issuance of the order, contending that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination and therefore was not sufficient to supplant the privilege and compel their testimony. The District Court rejected this contention and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity. Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury's questions notwithstanding the grant of immunity. The court found both in contempt and committed them to the custody of the Attorney General until either they answered the grand jury's questions or the term of the grand jury expired. The Court of Appeals for the Ninth Circuit affirmed the contempt findings. The Supreme Court granted certiorari to resolve whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom or whether transactional immunity is necessary.
Yes. The Fifth Amendment privilege applies to any person compelled to give testimonial evidence that might tend to incriminate her, whether she appears in federal or state court and whether she is formally a defendant or simply a witness. Incorporation through the Fourteenth Amendment makes the protection fully applicable to state proceedings.
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…forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled self-incrimination the Court has created a limited Fifth Amendment right to counsel—or, as the Court expresses it, a "need for counsel to protect the Fifth Amendment privilege . . . ." Ante , at 470. The…
…to have excluded from criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses. The test for…
…if not fears, of its own shadowy distinction between compelling “physical evidence” like blood which it holds does not amount to compelled self-incrimination, and “eliciting responses which are essentially testimonial
…Court held that "a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony
…privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial
She must appear. A valid subpoena compels appearance and the taking of an oath. Once there, the witness may refuse to answer particular questions if truthful answers might tend to incriminate her, but the privilege does not create a blanket right to avoid appearing before the grand jury.
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No. Extraction and chemical analysis of blood involve no communicative act by the accused and therefore fall outside the Fifth Amendment privilege. The results are admissible even though obtained through compulsion because the evidence is physical rather than testimonial.
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No. Once the privilege is invoked, the government must grant adequate immunity before the statements may be used. Without immunity the compelled testimony is inadmissible in any subsequent criminal case against the witness.
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