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Article Excerpt
Historically, disputes regarding witnesses' claims pursuant to the Self-Incrimination Clause of the Fifth Amendment, (1) regardless of the varying contexts in which they arise, have been resolved at the time each claim is made. Thus, for example, where a witness before a Congressional committee is asked a question she believes calls for an incriminatory response, and the committee disagrees, the witness typically will refuse to answer and the committee can commence a contempt proceeding against her. In such a proceeding, the court will resolve the Self-Incrimination Clause dispute because the witness' claim of the constitutional privilege, if valid, will provide her a complete defense to the contempt charge. Similarly, a person who suffers a legal detriment because he refuses to provide incriminating information to the government in a less formalized setting will often bring an action challenging the government's right to impose the detriment upon him because it amounts to compulsion to incriminate himself. Again, the court will resolve the Self-Incrimination Clause dispute to determine whether the invoker's (2) rights have been violated.
Yet, three Terms ago, in Chavez v. Martinez, a majority of the Supreme Court held that the Self-Incrimination Clause is not violated unless and until a person's compelled self-incriminatory words are actually used against him in a criminal judicial proceeding. (3) This throws into question the historic practice of addressing Self-Incrimination Clause issues without regard for the procedural posture of the particular case. If a violation of the Self-Incrimination Clause is not complete until a person has been required to be a "witness against himself" "in [a] criminal case," then, arguably, neither of the disputes mentioned above should be decided at all because neither is ripe for review.
The Court has not yet come to terms with a ripeness requirement with respect to claims of the constitutional privilege against self-incrimination. For example, in the Term before Chavez was decided, the Court considered the claim of a state prisoner that by requiring his admission of guilt in a prison program for sex offenders, on pain of expulsion from the program and the imposition of less desirable conditions of confinement, the State violated his constitutional privilege against self-incrimination. (4) Though the Court ultimately rejected the claim, it did so on the ground that the prisoner had not experienced compulsion sufficient to make out a violation of the Self-Incrimination Clause. (5) None of the nine Members of the Court considered the possibility that the claim should have been rejected because the plaintiff had never been a "witness against himself" "in [a] criminal case," and therefore the claim was not ripe for review. Likewise, subsequent to Chavez, in Hiibel v. Sixth Judicial District Court, the Court addressed the constitutionality of a Nevada statute requiring individuals to identify themselves when asked to do so by the police. (6) The Court rejected the claim that the statute violated the Self-Incrimination Clause, reasoning that mere disclosure of one's name ordinarily "present[s] no reasonable danger of incrimination." (7) The dissenters (8) strongly disagreed, arguing that "[a] person's identity obviously bears informational and incriminating worth." (9) Again, however, none of the Justices considered the possibility that, since the defendant had never been a "witness against himself" "in [a] criminal case," the issue was unripe pursuant to the principles enunciated in Chavez.
Since the Burger Court era, the Court has been quite stringent in enforcing the requirement that any dispute (10) be ripe for review in order to satisfy the "case or controversy" requirement of Article III of the Constitution. (11) In the Self-Incrimination Clause context, however, the Court has failed to perceive its own gradual slippage from deciding concrete cases to deciding those in which the actual danger of a violation of the Clause, properly understood, is remote at best. This slippage is largely a result of the Court's failure to distinguish between claims of the constitutional privilege against self-incrimination litigated after a criminal conviction, on the one hand, from those litigated in the investigatory stage of a criminal matter and those arising in contexts wholly unrelated to criminal matters, on the other.
This article argues that, in light of the renewed understanding of the Self-Incrimination Clause exemplified by Chavez, the federal courts should refuse to address disputes over the validity of claims of the constitutional privilege against self-incrimination unless there is at least an imminent danger that a person's words will be used against her in a criminal judicial proceeding. (12) Part I examines the elementary rules that govern a claim of the constitutional privilege against self-incrimination in all varieties of settings, ranging from those in which the invoker of the privilege has already had her words used against her in a criminal proceeding, to those in which there is not even a hint that this will ever occur. Part II discusses Chavez v. Martinez, which, for the first time, held that a Self-Incrimination Clause violation occurs only if and when a person's compelled statements are used against her in a criminal proceeding, and then discusses the conflict between Chavez and the courts' historic practice of addressing disputes over claims of the constitutional privilege against self-incrimination before a criminal prosecution is initiated. Part III examines the ripeness doctrine in general terms, and then argues that the Court must take the ripeness requirement more seriously in Self-Incrimination Clause cases. This Part re-examines the various types of Self-Incrimination Clause disputes with ripeness in mind and proposes a framework for deciding whether each type presents a ripe controversy. It argues that the Self-Incrimination Clause is similar to its Fifth Amendment neighbor, the Takings Clause, in this respect: there is no absolute right to silence pursuant to the Self-Incrimination Clause just as there is no absolute right to property pursuant to the Takings Clause. Thus, an individual faced with the decision whether to incriminate himself or herself is in the same position as one whose property has been taken. Each must await further government action--the initiation of criminal proceedings in the one case and the refusal to pay just compensation in the other--before the issue is ripe for review.
I. SELF-INCRIMINATION CLAUSE JURISPRUDENCE
The Supreme Court's jurisprudence on the Self-Incrimination Clause has addressed claims that arise in a variety of contexts. On one end of the spectrum, the Court has addressed claims of the constitutional privilege against self-incrimination litigated after a criminal conviction of the person whose compelled statements have been used against him or her at trial. At the other end, the Court has addressed Self-Incrimination Clause disputes arising in contexts where the threat of criminal prosecution is, at best, remote. The Court has consistently ignored these distinctions and resolved these different types of disputes by applying principles universally applicable to all, on the assumption that the Clause is violated at the time that self-incriminating statements are compelled.
A. THE VARYING CONTEXTS IN WHICH SELF-INCRIMINATION CLAUSE DISPUTES ARE LITIGATED
The Supreme Court has addressed disputes regarding the Self-Incrimination Clause both before and after a criminal prosecution has taken place. In both categories of cases, the dispute can arise in a variety of settings: before a grand jury; before a Congressional committee; before an administrative agency or other analogous governmental body; and in a civil action.
1. After the Initiation of a Criminal Prosecution
Even if one knew nothing about Self-Incrimination Clause jurisprudence, one could easily guess that the Supreme Court would have had occasion to address Self-Incrimination Clause disputes after a criminal prosecution and conviction. The core of the Self-Incrimination Clause concerns the defendant who claims to have been "compelled ... to be a witness against himself," leading to his conviction of a criminal charge, in violation of the Clause. Only in very rare cases does the compulsion itself occur at trial, since the core meaning of the Clause has been clear to actors in the criminal justice system for some time: no defendant can be required to testify at his or her own criminal trial. Thus, the compulsion and the "witnessing" typically occur at two different times, the former prior to trial and the latter at trial. One way in which the compulsion does occur at trial is where the government does not directly force the defendant to testify, but indirectly pressures him to do so by commenting on his silence at trial, making the decision to remain silent "costly." (13)
More often, the purported compulsion will have occurred before trial but the Self-Incrimination Clause dispute will not have been fully litigated until after a prosecution has been initiated. For example, the putative defendant will have made disclosures to a state or federal grand jury, and a prosecutor will attempt to use those disclosures against her at a criminal trial. The Supreme Court has long addressed Self-Incrimination Clause disputes arising in this way. (14) Sometimes, the dispute arises because the putative defendant has arguably been compelled to provide disclosures in a civil action and those disclosure are later used to prosecute her for a crime. (15) In other cases, the dispute arises because the putative defendant has arguably been compelled to make disclosures before an administrative agency to which she has been subpoenaed, and, again, a prosecutor then seeks to use the evidence against her in a criminal prosecution. (16) And in some cases, an arguably compelled disclosure made before a Congressional or other legislative committee is later used against the defendant in a criminal prosecution. (17)
Finally, Self-Incrimination Clause disputes often arise in less formal settings. These are analogous to the cases in which testimony has arguably been compelled before an administrative agency. However, the "proceeding" is an informal one and the body requesting the information has neither subpoena power nor contempt power, although less formally recognized persuasive forces are at work. For example, the Court has addressed whether statements induced by a state probation officer, during a compulsory meeting, could properly be used against the probationer at a subsequent criminal trial, (18) and whether disclosures made on a mandatory federal income tax return were properly used against the taxpayer to convict him of a criminal charge. (19) In perhaps the most common type of case falling into this category, the defendant claims that a confession was coerced from him by the police and that confession is later used against him at trial, thereby making the suspect an unwilling "witness against himself' "in [a] criminal case." (20) The Supreme Court has long addressed such claims, starting in 1897 with Bram v. United States. (21) With its Miranda jurisprudence, (22) the Court has created a distinct doctrinal line to address the problem of the inherently coercive nature of the interrogation room and has grounded that doctrinal line squarely in the Self-Incrimination Clause. (23)
2. Before (or Unrelated to) the Initiation of a Criminal Prosecution
Very often, the courts will address Self-Incrimination Clause disputes before a criminal prosecution is instituted. The Supreme Court has recognized that the privilege can apply in any setting, not only in a "criminal case." As the Court wrote in McCarthy v. Arndstein:
The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. (24)
Using as a springboard its statement in McCarthy that the Fifth Amendment privilege "applies" in settings other than criminal proceedings, the Court has gone further and concluded that the Self-Incrimination Clause "'privileges [the witness] not to answer official questions put to him in any ... proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'" (25)
Thus, the Court has generally assumed, at least until recently, (26) that the Self-Incrimination Clause protects two separate and distinct rights. Aside from protecting against the possibility of a person's compelled statements being used against him or her in a criminal judicial proceeding, (27) the Clause "also is operative before criminal proceedings are instituted; it bars the government from using compulsion to obtain incriminating information from any person." (28)
Thus, in case of a dispute over a claim of the constitutional privilege, the parties need not, under current law, wait until after a criminal prosecution is initiated for resolution of the dispute. Instead, once the dispute arises, the parties can have it resolved in court, often in a contempt proceeding. In United States v. Mandjuano, the Supreme Court outlined the typical procedure when the dispute arises in the grand jury, though the description is equally applicable to other fora:
If the witness interposes his privilege, the grand jury has two choices. If the desired testimony is of marginal value, the grand jury can pursue other avenues of inquiry; if the testimony is thought sufficiently important, the grand jury can seek a judicial determination as to the bona tides of the witness' Fifth Amendment claim, in which case the witness must satisfy the presiding judge that the claim of privilege is not a subterfuge. If in fact there is reasonable ground to apprehend danger to the witness from his being compelled to answer, the prosecutor must then determine whether the answer is of such overriding importance as to justify a grant of immunity to the witness. (29)
Where the contempt court has found a good faith basis for the claim of the constitutional privilege, and "[i]f immunity is sought by the prosecutor and granted by the presiding judge, the witness can then be compelled to answer, on pain of contempt, even though the testimony would implicate the witness in criminal activity." (30)
If, on the other hand, the presiding judge feels there is no justification for the claim of privilege, the grand jury witness will be held in contempt. Then, the grand jury witness has two options. If she stands in contempt, again, the grand jury will not obtain the needed information and she will be punished as a contemnor. On the other hand, the grand jury witness can usually purge herself of the contempt by then providing the requested testimony. (31) However, if she does, it is not at all clear that she can later challenge the admissibility of that testimony in a criminal trial on the ground that she was compelled to provide it on pain of contempt. (32)
The courts address with some frequency the validity of such a claim of the constitutional privilege outside the confines of a criminal prosecution. For example, as noted above, a grand jury witness may claim the privilege and refuse to answer questions and a dispute arises over whether the privilege is properly claimed. The dispute can take a number of forms. (33) For example, the questioner and the grand jury witness might disagree over whether the question truly calls for a response that might incriminate the witness. (34) Also, the grand jury witness might be granted immunity, and the disagreement is over whether the immunity conferred is broad enough to supplant the constitutional privilege, thereby requiring that the witness answer. (35) A third dispute can arise over whether the government has acted with compulsion, such as by attaching a penalty or the deprivation of a benefit to a claim of the constitutional privilege. (36) Finally, the dispute can be over whether the grand jury witness has adequately apprised the grand jury of her intention to rely on the privilege. (37)
Similarly, as noted above, the Self-Incrimination Clause dispute can arise when a person has been called before an administrative agency or analogous body and is asked potentially incriminatory questions. Again, the dispute can arise where the questioner and the invoker disagree over whether: the question actually calls for an incriminatory response; (38) the immunity conferred is broad enough to replace the constitutional privilege and require the invoker to answer; (39) compulsion has been utilized by the government; (40) or the invoker has effectively waived the constitutional privilege by failing to claim it. (41) Again, this dispute is often resolved in court prior to the initiation of any criminal prosecution.
Likewise, it is sometimes the case that a person is called before a Congressional or state legislative committee and a Self-Incrimination Clause dispute arises. Obviously, the same issues can arise in such a context. (42) Once again, the dispute is often resolved in court at the time it arises, in advance of "any criminal case."
Finally, the dispute can arise in a civil case, in which a litigant is ordered by the court, in the course of discovery, to make potentially self-incriminating disclosures. Again, the same issues can arise. (43) And again, the dispute is often fully litigated before there is any hint of a criminal prosecution. As the Court held in United States v. Saline Bank of Virginia, one of the oldest cases addressing compelled self-incrimination, "[t]he rule clearly is, that a party is not bound to make any discovery [in a civil case] which would expose him to penalties." (44)
B. GENERAL PRINCIPLES GOVERNING SELF-INCRIMINATION CLAUSE DISPUTES
A number of principles emerge from the cases addressing whether a claim of the constitutional privilege has been properly made, regardless of the setting. This article focuses on three of those principles. First, the invoker of the constitutional privilege must affirmatively claim the privilege in order to take advantage of it. Second, in order for the sought-after information to be deemed incriminatory as to the invoker, the threat of future prosecution must be real and not speculative. Finally, although the courts must grant the invoker considerable leeway in determining whether a question calls for an incriminatory response, the courts, and not the invoker herself, must be the ultimate arbiter.
1. The Requirement That the Invoker Claim the Constitutional Privilege at the Time the Incriminatory Response is Called For
One rule that has emerged from the Supreme Court's jurisprudence on the Self-Incrimination Clause is that the invoker must claim the Fifth Amendment privilege at the time the incriminatory response is called for. (45) Thus, if the would-be invoker simply refuses to answer the question without giving a reason, or gives a reason other than the constitutional privilege, she is automatically subject to punishment for contempt, irrespective of whether a proper claim of that privilege would have been valid. (46) In addition, if, instead of claiming the constitutional privilege, she testifies falsely, she is liable for perjury, even if a claim of that privilege at the time would have been proper. (47) Moreover, if the putative invoker answers without making a claim of the Fifth Amendment privilege, she cannot "unring the bell": she cannot take her answer back, and retroactively claim that privilege. (48) Similarly, where "criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details." (49) And once information is divulged, either without proper objection or because the objection has come too late, it may be used by the authorities for any purpose, including direct evidence of the invoker's guilt at a subsequent criminal trial. (50)
These requirements, the Court has reasoned, strike the appropriate balance between "the Fifth Amendment privilege and the generally applicable principle that governments have the right to everyone's testimony." (51) If the subject of the inquiry does not object, the government may not know that it is about to elicit arguably incriminatory testimony. Whether a seemingly innocuous question might lead to incriminating testimony is a matter peculiarly within the knowledge of that person, and she must put the government on notice that this is so if she is to preserve her claim that her answer was compelled. (52)
Thus, in United States v. Monia, the defendants had been subpoenaed before a grand jury and gave testimony without ever claiming the constitutional privilege. (53) They were later indicted for crimes relating to their testimony. (54) They argued that the indictment should be dismissed, but the Supreme Court disagreed, holding that the defendants voluntarily testified and therefore were not "compelled": "The amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment." (55)
2. The Minimal Need for Concreteness of the Threat of a Future Prosecution
It is well settled that in order for a person to claim the Fifth Amendment privilege, the threat that she ultimately will be prosecuted based on her disclosures must be real and concrete, not imaginary or speculative. The definitive exposition of this rule comes from the English case of Regina v. Boyes:
[T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things--not a danger of an imaginary and insubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice.... [I]t would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice. (56)
Early in the Supreme Court's jurisprudence on the Self-Incrimination Clause, it adopted this rationale to limit the reach of the Clause. Thus, in Brown v. Walker, in upholding a federal immunity statute for the first time, the Court quoted this passage at length. (57) It reasoned that the Self-Incrimination Clause "presupposes a legal detriment to the witness arising from" his disclosures, and that if no criminal prosecution were possible because immunity was granted, the Clause does not prohibit compulsion to make the disclosures. (58)
In most cases, the Court has been willing to presume that if a disclosure would implicate the witness in activity that is actually addressed by a criminal statute, the mere possibility of prosecution is sufficient to render the putative response incriminatory. (59) The Court has sometimes characterized "the test [a]s whether the testimony might later subject the witness to criminal prosecution." (60) Thus, in Blau v. United States, the witness had refused to answer questions before a federal grand jury regarding whether she was employed by the Communist Party, at a time when the Smith Act (61) forbade knowingly belonging to any organization that advocated overthrow of the government. (62) The Court held that the very existence of the Smith Act was sufficient to render incriminatory the answer to the grand jury's question, and that the witness therefore could refuse to answer. (63)
3. The Sharing of Responsibility Between Invoker and Judge Regarding Whether the Invoker's Answer Would be Incriminatory
The final governing principle, related to the second, is that, while the invoker of the Fifth Amendment privilege must necessarily be afforded some deference when determining whether a question calls for an incriminatory response, the courts, and not the invoker herself, must make the final determination. While the second principle discussed centers on the possibility of a prosecution, the third focuses on whether, assuming there is to be a prosecution, the disclosure could be used to prove the case against the invoker. Early on, the courts acknowledged that too little deference to the invoker would defeat the purpose of the privilege. Only the invoker knows what the answer would be, and only she knows why a seemingly innocuous response might connect her, through a chain of other evidence, to nefarious activity. Therefore, to require her to disclose precisely why a question calls for an incriminatory response would require her to make the very disclosures she fears and which she arguably has a constitutional right not to make.
This was made clear in what is considered the first important Self-Incrimination Clause case, United States v. Burr, (64) decided only sixteen years after the adoption of the Clause. Burr was neither a Supreme Court case nor, strictly speaking, a Self-Incrimination Clause case, since it never cited the Clause. (65) Authored by Chief Justice Marshall sitting as Circuit Justice, however, the decision in Burr set the standard for later Self-Incrimination Clause cases in the Supreme Court. A federal grand jury, considering charges against former Vice-President Aaron Burr, called Burr's secretary, a Mr. Willie, as a witness to decipher the contents of a letter in Willie's handwriting. (66) Willie refused to answer questions regarding the letter, arguing that even to admit understanding the contents or knowing the provenance of the letter could tend to incriminate him in his boss's illicit scheme. (67) Chief Justice Marshall held for the circuit court that Willie need not answer the questions. In so doing, he established a standard of broad deference to the witness. The issue for the court is "whether any direct answer to [the question propounded] can implicate the witness." (68) If not, then the witness must answer. (69) Otherwise, the witness "must be the sole judge what his answer would be." (70) If the witness "say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact." (71) The reason for this result is simple: for the court to participate in considering whether the witness's answer would be truly incriminatory, the witness would have to disclose the answer, at least to the court; but this would, according to the Burr court, defeat the privilege. (72) As the court wrote:
The court cannot participate with [the witness] in this judgment, because [the court] cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. (73)
However, more recently, the Court has stated that courts must take a more active role, at least to the extent of determining whether an invoker's fear of self-incrimination is reasonable. The Court has cited with approval language from Regina v. Boyes that indicates that such a role is appropriate:
[T]o entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. (74)
The Court has also stated that the privilege "protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." (75) Thus, the question is one for both the invoker and the court: the invoker must determine whether an answer could be incriminatory, but, if she does, the court must determine whether such a belief is reasonable based on the limited information at its disposal.
II. CHAVEZ V. MARTINEZ: A NEW VIEW OF THE SELF-INCRIMINATION CLAUSE
As detailed above, the Court has allowed parties to litigate disputes arising under the Self-Incrimination Clause not only after a criminal prosecution has been initiated, but also in advance of any such prosecution, even when no realistic threat of prosecution has been posed. This position has been a result of the Court's historic assumption that the Self-Incrimination Clause gives rise to a right, not only not to have compelled statements used against their maker, but a distinct and independent right not to have the government compel one to disclose self-incriminatory information in the first place. This assumption, however, has been undercut recently by the Court's first clear holding on the issue in Chavez v. Martinez. (76) The Court held there what...
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