CHAPTER 30

THE PRIVILEGE AGAINST SELF-INCRIMINATION

§ 30.01 Scope of the Privilege

§ 30.02 - Testimonial Evidence

§ 30.03 - Self-Incrimination

§ 30.04 - Compulsion

§ 30.05 Assertion of the Privilege

§ 30.06 - The Defendant's Right Not To Testify

§ 30.07 - The Witness's Right

§ 30.08 Immunity

§ 30.09 - Scope of Immunity

§ 30.10 - Defense Witness Immunity

The constitutional privilege against self-incrimination{1} in the policeinterrogation context is the subject of Chapter 3. This chapter deals with the privilege when a witness is called on in court (by subpoena or by questions on the witness stand) to furnish testimony.

§ 30.01

Scope of the Privilege

In brief, the privilege bars testimonial or communicative evidence that has a potential to incriminate the defendant or witness (i.e., to make him or her criminally liable) and that the state has compelled the defendant or witness to disclose.

§ 30.02

- Testimonial Evidence

The distinction between testimonial and nontestimonial evidence, discussed in § 3.01, applies in the trial setting as well. Because the privilege only bars compulsion of testimonial evidence, it is not violated by requiring the defendant to stand in a lineup{2} or to furnish a voice exemplar,{3} although other safeguards apply to such procedures.{4}

§ 30.03

- Self-Incrimination

A witness may properly invoke the privilege, the United States Supreme Court said in Hoffman v. United States, whenever it is "evident from the implications of the question, in the setting in which it is asked, that a responsive answer might be dangerous because injurious disclosure could result."{5} The claim has to be allowed unless it is "`perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken and that the answer[s] cannot possibly have such a tendency' to incriminate."{6} Seemingly innocuous questions may have a tendency to incriminate if the answers form a "link" in a chain of evidence.{7}

In State v. Mace{8} the Vermont Supreme Court held that a probationer, who refused to admit criminal conduct in a therapy session, could not rely on the privilege against self-incrimination, because although his answers might theoretically have given rise to a criminal prosecution, the state's goal was rehabilitative, not investigatory, and the likelihood of a new prosecution was too remote.{9} The decision was overturned in a later habeas corpus proceeding, the federal court holding that the state's purposes were irrelevant, and that if the answers are potentially incriminating the witness need not show an intention to prosecute.{10}

The witness risks incrimination if the statements could be used against her in a criminal prosecution, or in a quasi-criminal setting such as a juvenile delinquency proceeding.{11} But helping the state's case in a noncriminal setting, such as probation revocation, is not "incrimination" under the fifth amendment.{12}

But the risk of incrimination is present even when the statement has not been compelled in a criminal proceeding, so long as it could be used in one. The privilege

not only permits a person to refuse to testify against himself at a criminal trial, but also "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."{13}

The state can only insist on answers to potentially incriminating questions if "it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination."{14} Such an assurance may come as a formal grant of immunity, discussed below.{15}

The risk of incrimination disappears when the person no longer faces a risk of criminal penalties, at which point she can no longer claim the protection of the privilege. But it is not always clear when that stage has been reached. If the witness has been tried and acquitted of the charge, double jeopardy law bars reprosecution by the same prosecuting authority; the witness can still claim the privilege if, for example, she might be prosecuted for the same conduct in federal court.{16} A witness who has been convicted may claim the privilege until the conviction has become final. It is clear that the defendant retains the privilege after verdict and pending sentence, to prevent the possibility that what she says will enhance the punishment.{17} Even after sentence the defendant retains the privilege pending appeal,{18} and maybe even during the pendency of a postconviction collateral challenge,{19} although the Vermont Supreme Court has also said that the privilege is "extinguished" once the defendant has been sentenced.{20}

§ 30.04

- Compulsion

Statements are compelled if they are "not given freely and voluntarily without any compelling influences."{21} Written statements which have been voluntarily prepared are not "compelled" for fifth amendment purposes,{22} but a subpoena to produce such documents, a form of direct state compulsion, may violate the privilege if the act of production would itself be testimonial and incriminating (e.g., by admitting the existence and authenticity of the subpoenaed materials and the witness's control over them).{23}

a. Penalty Cases

The state may not penalize the assertion of the privilege by such sanctions as loss of employment or revocation of probation, and a statement made in response to such a threatened penalty is compelled under the fifth amendment.{24} In In re M.P.C.{25} the Vermont Supreme Court, citing the United States Supreme Court's penalty cases, held that a trial judge cannot require parents to admit criminal misconduct as a condition for regaining custody of their children, inasmuch as "deprivation of custody of a child is a sanction for purposes of the Fifth Amendment."{26}

Not every adverse consequence of silence constitutes a fifth amendment "penalty." To take an obvious example, a defendant who asserts a right not to testify at trial suffers the loss of his testimony, but that loss is an unavoidable consequence of the defendant's claim of privilege and not even arguably a "penalty."{27} Similarly, while the Vermont court held in M.C.P. that a judge cannot require an incriminating statement as a precondition for child custody, the court made clear that the parents' assertion of privilege (and failure to overcome their "denial") may make it impossible for them to show that they are entitled to custody, a consequence which "is not a penalty or sanction but is instead an expression `of the reality that it is unsafe for children to be with parents who are abusive and violent.'"{28}

The same elusive distinction, the Vermont Supreme Court held in State v. Sims,{29} allows judges to use a defendant's assertion of privileged silence at sentencing. In Sims the defendant denied guilt in his trial testimony and stood on his privilege at sentencing, as he was entitled to do, since the conviction had not yet been affirmed on appeal.{30} The judge found that probation was not an option given the defendant's "denial," and on appeal the Vermont Supreme Court affirmed. Noting that the defendant's acceptance of responsibility and remorse may justify a reduction of sentence, the court reasoned that "denying this reduction, where there are no acknowledgments," was not a penalty on the exercise of the privilege.{31} The distinction between a benefit withheld and a penalty imposed seems disingenuous and is arguably wrong as a matter of fifth amendment law.{32}

b. Begins Cases

The possibility that testimony in one proceeding will be used to incriminate the defendant in a different proceeding sometimes entitles the witness to a grant of judicially ordered use immunity. In State v. Begins{33} a probationer, charged with a probation violation as well as a new criminal offense, pointed to this tension between rights. She had a right and a need to testify in the probation case, but if she did so she risked self-incrimination on the pending criminal charges. If she remained silent for fear of self-incrimination, her silence would be penalized by revocation of probation. Without deciding whether this dilemma violated the fifth amendment, the Vermont Supreme Court held it was "unnecessarily inconsistent with constitutional values."{34} The trial judge should either have scheduled the probation case after the criminal trial, or granted the defendant use immunity for her testimony in the probation case.{35} The Vermont court has ordered "Begins immunity" in similar contexts, where testimony in one proceeding risks self-incrimination in another.{36}

§ 30.05

Assertion of the Privilege

The privilege entitles the defendant in a criminal case to refuse to be a witness at all, whereas witnesses (and defendants in a noncriminal proceeding) must specifically assert the privilege and may only claim it as to incriminating questions.

§ 30.06

- The Defendant's Right Not To Testify

The privilege absolutely entitles the defendant to refuse to testify at all at the trial.{37} In State v. Platt{38} the Vermont Supreme Court declined to find a violation of this absolute privilege when the state compelled the defendant to testify at a sentence reconsideration hearing - on the ground that this aspect of the privilege applies only in criminal proceedings and the reconsideration hearing "was not part of the basic criminal case for purposes of the Fifth Amendment guarantee."

When the defendant exercises his right against self-incrimination, the United States Supreme Court held in Griffin v. California, the prosecutor may not ask the jury to draw adverse inferences or comment on the choice in any way.{39} While prosecutors now generally avoid direct comments on the defendant's failure to take the stand, they may be able to make substantially the same point indirectly. In State v. Hamlin, the prosecutor referred to testimony that the defendant made an admission to the crime, and proceeded to argue as follows:

Louie [the defendant] as he sits here knows he's guilty. He's sitting right here, he knows he's guilty . . . .When [the witnesses] were there on the bridge, what did Louie say? ["]Actually we did it[,"] and laughed. Right Louie?{40}

Such "equivocal" arguments, the Vermont Supreme Court held, must be viewed in context and will be found improper if "the remark was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify." In context the court concluded that the argument was not intended and would not have been taken as such a comment.{41

The Griffin} rule applies only to proper assertions of the privilege, and in some circumstances a defendant's failure to come forward with an exculpatory account may be fair game for prosecutorial comment.{42} In rare circumstances a prosecutor's Griffin argument may be appropriate as retaliation for a defense argument, for example, that the prosecutor "prevented" the defendant from explaining his side of the story.{43}

The defendant who refuses to take the stand is entitled to an instruction that the jury should draw no adverse inferences.{44} The defense may want to decline this entitlement for tactical reasons (because by calling attention to the defendant's failure to testify the charge can do more harm than good), and the judge may not give the instruction unless the defendant asks for it.{45}

§ 30.07

- The Witness's Right

While the defendant may refuse to testify altogether (except in a noncriminal proceeding or stage of the proceedings){46} nonparty witnesses have no fifth amendment right to resist a subpoena or to assert a blanket right not to testify; they must take the stand and claim the privilege as to particular questions.{47}

As a general rule a failure to assert the privilege will be construed as a waiver, and, no matter how insistent the questioning or incriminating the answer, the answer will not be suppressible on fifth amendment or article 10 grounds.{48} The rule has two important exceptions, however: statements made in custodial interrogation, where the special waiver rules of Miranda v. Arizona apply;{49} and "penalty" cases, where the state asserts that invocation of the privilege will or may incur a penalty.{50} For example, in Garrity v. New Jersey{51} the United States Supreme Court held that an employee, whom the state threatened with discharge for refusing to answer questions, had not waived the privilege by responding to questions rather than standing on his rights and risking the consequences. On the same theory a probationer, who is threatened with revocation for refusing to answer a probation officer's potentially incriminating questions, does not waive the privilege by answering.{52}

Just as the state may not comment on the defendant's exercise of the privilege, the Vermont Supreme Court held in State v. Benneig{53} that a trial judge can and should prevent counsel from arguing about a witness's silence, which the court said was not "evidence" and therefore had no probative value.{54}

§ 30.08

Immunity

By statute, when a witness asserts the privilege in any proceeding "before or ancillary to a court or grand jury," the prosecutor can ask the judge to require him to testify, with the proviso that the testimony will not be used against him in a future criminal case.{55} The witness is entitled to such immunity only if he has a valid self-incrimination right not to testify, that is, only if he faces potential criminal liability.{56}

The decision belongs exclusively to the prosecutor, who "may" ask for immunity whenever he believes that testimony of a recalcitrant witness "may be necessary to the public interest. . . ."{57} The judge has no power to grant immunity under the statute without a prosecution request,{58} but he has inherent power to do so, in special situations if not across the board.{59}

The prosecutor's discretion is not absolute, however. Making immunity conditional on the witness testifying to a particular version of events, or granting it in a way that is likely to produce perjured testimony, would be condemned as due process violations, under the general rule prohibiting knowing use of perjured testimony.{60}

§ 30.09

- Scope of Immunity

The statute requires only a grant of "use" immunity - protection against the direct and derivative uses of the compelled testimony - and not a broader "transactional" immunity - an undertaking not to prosecute the witness for the events about which the witness testifies.{61} If the state proceeds to prosecute, however, it must show beyond a reasonable doubt that "any proferred evidence was derived from sources totally independent of the compelled testimony."{61.5}

Use immunity, the United States Supreme Court held in Kastigar v. United States,{62} is sufficient under the federal constitution. The common law, however, required transactional immunity, as did the fifth amendment before Kastigar,{63} and the Vermont constitutional requirement is an open question. One trial court opinion holds that chapter I, article 10 requires transactional immunity before a witness can be compelled to speak over a claim of privilege.{64}

Although the statute does not require transactional immunity it permits it, by agreement or court order.{65}

§ 30.10

- Defense Witness Immunity

No statute specifically authorizes the court to grant immunity if the prosecutor does not ask for it, and the Vermont Supreme Court has consistently rejected claims that prosecutors should be required to grant immunity to defense witnesses who refuse to testify for fear of self-incrimination, while acknowledging the appropriateness of such relief in theory.{66}

One clear exception to this rule is the Begins line cases - cases where the defendant's testimony in one proceeding could be used to incriminate him or her in a subsequent criminal case.{67} The judge in such situations can alleviate the "hard testimonial choice" by a grant of use and derivative use immunity.{68}

A second exception, and it is only an arguable one, is the case where the prosecutor has refused to grant immunity to a defense witness "with the deliberate intention of distorting the judicial fact finding process[,]"{69} or where the defense makes a convincing showing that the lack of immunity has prevented it from proving "exculpatory evidence which is crucial to [its] case."{70} Whether the defense would be entitled to immunity in such cases remains an open question.{71}

1. No person "shall be compelled in any Criminal Case to be a witness against himself[,]" U.S. Const. amend. 5; no person in a criminal prosecution can "be compelled to give evidence against himself[,]" Vt. Const. ch. I, art. 10. The privilege is restated in part in 12 V.S.A. § 1662.

2. United States v. Wade, 388 U.S. 218 (1967).

3. United States v. Dionisio, 410 U.S. 1 (1973).

4. See chapter 4.

5. Hoffman v. United States, 341 U.S. 479, 486 (1956). See also In re Hill, 149 Vt. 431, 436 (1988).

6. Hoffman v. United States, 341 U.S. 479, 488 (1956) (quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881) (U.S. Supreme Court's emphasis)). But the potential for incrimination must be "substantial and `real,'" i.e., more than a "trifling or imaginary" risk. Marchetti v. United States, 390 U.S. 39, 53 (1968).

7. Hoffman v. United States, 341 U.S. 479, 486 (1956); In re Hill, 149 Vt. 431, 435-36 (1988); See also Kastigar v. United States, 406 U.S. 441, 445 (1972).

8. 154 Vt. 430 (1990).

9. State v. Mace, 154 Vt. 430, 436 (1990).

10. Mace v. Amestoy, 765 F. Supp. 847, 851 (D. Vt. 1991). See also In re Hill, 149 Vt. 431, 435 (1988) (claimant of privilege need not demonstrate that she will be prosecuted).

11. In re Gault, 387 U.S. 1, 49 (1967).

12. See Allen v. Illinois, 478 U.S. 364, 374-75 (1986) (civil commitment proceeding for sex offenders); Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984); Baxter v. Palmigiano, 425 U.S. 308, 317-18 (1976) (prison disciplinary hearing); State v. Steinhour, No. 91-096, slip op. 2-3 (Vt. April 3, 1992) (probation revocation); Baxter v. Vermont Parole Board, 145 Vt. 644, 648-49 (1985) (parole revocation); State v. O'Brien, 91-207 (Vt. April 3, 1992) (DUI civil license suspension proceeding).

13. Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). See also Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977); In re M.C.P., 153 Vt. 275, 298 (1989).

14. Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984); In re M.C.P., 153 Vt. 275, 298 (1989). Cf. Allen v. Illinois, 478 U.S. 364 (1986) (privilege did not apply to Illinois's civil "sexual dangerous person" proceeding because state law explicitly insulated claimant against potential criminal liability).

15. § 30.08, infra.

16. See §§ 14.04, 14.10, supra (double jeopardy).

17. State v. Gleason, 154 Vt. 205 (1990); State v. Cox, 147 Vt. 421, 423 (1986), cert. dismissed as improvidently granted, 484 U.S. 173 (1987).

18. In re Hill, 149 Vt. 431, 435 (1988).

19. State v. Couture, 146 Vt. 268, 274-75 (1985).

20. State v. Gleason, 154 Vt. 205, 212 (1990).

21. Estelle v. Smith, 451 U.S. 454, 469-69 (1981).

22. See United States v. Doe, 465 U.S. 605, 610 (1984); Fisher v. United States, 425 U.S. 391, 402-14 (1976).

23. United States v. Doe, 465 U.S. 605, 612-14 (1984). See also Braswell v. United States, 487 U.S. 99, 109-10 (1988). Cf. Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990) (mother in CHINS proceedings may not refuse order to produce child on fifth amendment grounds).

24. Minnesota v. Murphy, 465 U.S. 420, 435 (1984); State v. Welch, No. 90-392, slip op. 17-18 (Vt. Oct. 30, 1992).

25. 153 Vt. 275 (1989).

26. In re M.P.C., 153 Vt. 275, 298-301 (1989).

27. See McGautha v. California, 402 U.S. 183, 211 (1971) (circumstance that defendant in capital trial "could remain silent on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment" was not a violation of constitutional rights).

28. In re M.C.P., 153 Vt. 275, 301 (1989) (quoting In re J.W., 415 N.W.2d 879, 884 (Minn. 1989)).

29. No. 90-436 (Vt. Nov. 8, 1991).

30. See § ____, supra.

31. State v. Sims, No. 90-436, slip op. 17 (Vt. Nov. 8, 1991). See also State v. Derouchie, No. 90-247, slip op. 6-7 (Vt. Nov. 22, 1991) (sentencing judge did not penalize defendant for not accepting responsibility sooner but merely doubted his sincerity).

32. In United States v. Oliveras, 905 F.2d 623 (2d Cir. 1990), the sentencing court refused to accord the defendant a sentence reduction under the federal sentencing guidelines to which he would otherwise have been eligible, because he refused to "accept responsibility" for a related crime, as to which he retained the privilege against self-incrimination. Citing the Supreme Court penalty cases, the Second Circuit vacated the sentence on fifth amendment grounds. Absent a grant of immunity, the effect of the sentence was "to penalize [the defendant] for refusing to incriminate himself. This runs afoul of the fifth amendment." Id. at 626. A contrary rule, the court wrote,

33. 147 Vt. 295 (1986).

34. State v. Begins, 147 Vt. 295, 298 (1986) (quoting People v. Coleman, 533 P.2d 1024, 1030 (Cal. 1975)).

35. State v. Begins, 147 Vt. 295, 299-300 (1986).

36. O'Brien v. Brown, 153 Vt. 652 (1990) (parole revocation hearing); State v. Drake, 150 Vt. 235 (1988) (immunity for defendant's testimony rebutting untried criminal charges at sentencing); In re Hill, 149 Vt. 431 (1988) (testimony of judicial conduct board hearing witness cannot be used in subsequent criminal prosecution). Cf. State v. Percy, No. 91-131, slip op. 7-8 (Vt. May 8, 1992) (testimony in rebuttal of unproven prior crimes; Begins inapplicable because prior crimes occurred out of state and court lacked power to grant immunity); State v. Lafayette, 152 Vt. 108, 111-12 (1989) (juvenile transfer proceedings, immunity not called for on facts of case).

37. Harris v. New York, 401 U.S. 222, 225 (1971); State v. Couture, 146 Vt. 268, 275 (1985). 13 V.S.A. § 6601 also provides that the defendant may testify "at his own request and otherwise. . . ."

38. No. 91-357, slip op. 7-8 (Vt. May 8, 1992).

39. Griffin v. California, 380 U.S. 609 (1965). A similar rule applies to a defendant's exercise of Miranda rights. See § 3.02, supra.

40. State v. Hamlin, 146 Vt. 97, 101 (1985) (emphasis in original).

41. State v. Hamlin, 146 Vt. 97, 103-04 (1985).

42. See State v. McElreavy, 157 Vt. 18, 21-22 (1991) (defendant failed to show up at civil deposition rather than appearing and claiming privilege). See also § 3.02, supra (pre-Miranda silence).

43. United States v. Robinson, 485 U.S. 25, 31 (1988).

44. Carter v. Kentucky, 450 U.S. 288, 300 (1981); State v. Goyet, 120 Vt. 12, 69-72 (1957); 13 V.S.A. § 6601. It is error for the judge to comment adversely on the defendant's silence. Griffin v. California, 380 U.S. 609, 614-15 (1965).

45. See State v. Emrick, 129 Vt. 330, 333 (1971). The fifth amendment rule is different. Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978).

46. State v. Platt, No. 91-357, slip op. 7-8 (Vt. May 8, 1992). See § 30.06, supra.

47. State v. Couture, 146 Vt. 268, 275 (1985).

48. Minnesota v. Murphy, 465 U.S. 420, 434 (1984); State v. McElreavy, 157 Vt. 18, 21-22 (1991).

49. See §§ 3.06-3.12, supra.

50. See § 30.04, supra.

51. 385 U.S. 493 (1967).

52. Minnesota v. Murphy, 465 U.S. 420, 435 (1984). In Murphy the court held that the state had not taken the impermissible step of threatening revocation for a refusal to answer. Id. at 436-37. In State v. Steinhour, No. 91-096, slip op. 2-3 (Vt. April 3, 1992), the Vermont Supreme Court assumed that the state would revoke for a refusal to answer, and that a statement made under such a threat would be inadmissible in a subsequent criminal proceeding, but held that the statement could be admitted in a probation revocation proceeding.

53. 146 Vt. 391, 396-98 (1985).

54. Compare Baxter v. Palmigiano, 425 U.S. 308, 319 (1976) ("the Court has consistently recognized that in proper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause"); Brink's, Inc. v. City of New York, 717 F.2d 700 (2d Cir. 1983) (allowing argument on inferences arising from witnesses' assertion of privilege). Compare also State v. McElreavy, 157 Vt. 18, 22-24 (1991) (prosecutor can argue inferences from defendant's failure to testify at civil deposition).

55. 12 V.S.A. § 1664(a). The statute provides that "no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used for any purpose, including impeachment and cross-examination, against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order."

56. State v. Briggs, 152 Vt. 531, 536-37 (1989); State v. Couture, 146 Vt. 268, 273-74 (1985).

57. 12 V.S.A. § 1664(c).

58. State v. Roberts, 154 Vt. 59, 67 (1990).

59. See § 30.10, infra.

60. State v. Briggs, 152 Vt. 531, 537-39 (1989).

61. 12 V.S.A. § 1664(a). The section permits successive "agreements" not to prosecute. State v. Briggs, 152 Vt. 531, 536 (1989).

61.5. 12 V.S.A. § 1664(a). Cf. State v. Welch, No. 90-392, slip op. 17-20 (Vt. Oct. 30, 1992) (defendant confessed pursuant to nonstatutory immunity promise; state's evidence of guilt derived from independent source).

62. 406 U.S. 441, 461-62 (1972).

63. Counselman v. Hitchcock, 142 Vt. 547, 585 (1892).

64. State v. Andrew, No. 569/70-5-91 Bcr (March 24, 1992).

65. 12 V.S.A. 1664(a) ("Nothing in this section shall preclude the [prosecutor] from entering into an agreement with a witness, or from requesting an order . . . under which the witness shall not be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence").

66. State v. Roberts, 154 Vt. 59, 67 (1990); State v. Hamlin, 146 Vt. 97 (1985); State v. Foy, 144 Vt. 109, 118 (1984) (trial counsel abandoned request for use immunity).

67. See § 30.04(b), supra.

68. State v. Begins, 147 Vt. 295, 299 (1986).

69. State v. Hamlin, 146 Vt. 97, 107 (1985) (quoting Government of Virgin Islands v. Smith, 615 F.2d 964, 968 (3d Cir. 1980)).

70. State v. Hamlin, 146 Vt. 97, 107-08 (1985) (quoting Government of Virgin Islands v. Smith, 615 F.2d 964, 969 (3d Cir. 1980)).

71. See State v. Roberts, 154 Vt. 59, 67 n.4 (1990).