Archive for the ‘Fifth Amendment’ Category

Asserting the Fifth Amendment in Court and the Granting of …

The first ten amendments to the U.S. Constitution are commonly known as the Bill of Rights and were ratified on December 15, 1791. It is remarkable how many of these amendments are still resilient today throughout the United States. Their individual freedoms against government interference include: the freedom of speech and religion and the right to peaceably assemble (First Amendment); the right to keep and bear arms (Second Amendment); the protection against unreasonable searches and seizures (Fourth Amendment); double jeopardy and due process protections, the prohibition against compelled self-incrimination, and compensation for private property taken for public use (Fifth Amendment); the right to counsel, speedy and public trial, impartial jury, confronting witnesses, and compulsory process to obtain witnesses (Sixth Amendment); and the protections against excessive bail and fines and cruel and unusual punishments (Eighth Amendment). This post focuses on the Fifth Amendment self-incrimination provision in the courtroom and the granting of immunity to a witness to compel testimony.

The Fifth Amendment privilege protects a person against compelled self-incrimination. A similar privilege exists in section 23 of Article I of the North Carolina Constitution, which has not been interpreted more expansively than the Fifth Amendment. While the privilege protects a person against compelled testimony and similar communications, it does not against compelled nontestimonial acts such as submitting to fingerprints, photographs, and sobriety testing, speaking for identification, appearing in lineups, and giving blood samples. See e.g., Schmerber v. California, 384 U.S. 757, 764-65 (1966) (withdrawal and chemical analysis of blood did not implicate defendants testimonial capacities and thus did not violate Fifth Amendment). The privilege may be invoked in any proceeding, civil or criminal, including a criminal investigation. It protects against any compelled disclosures that a person reasonably believes could be used in a criminal prosecution or could lead to the discovery of other evidence that might be used in a prosecution. Kastigar v. United States, 406 U.S. 441, 444-45 (1972). When a witness invokes the privilege, the trial court must determine whether it may be reasonably inferred that the answer may be incriminating, and the invocation should be liberally construed.

A criminal defendant has the right under the Fifth Amendment privilege to decline to take the stand. If a defendant decides not to testify, the State or a judge may not call the defendant to the stand, and a codefendant may not call the defendant to the stand at their joint trial. However, a defendant who voluntarily takes the stand and testifies in his or her own behalf cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination. When a defendant exercises his or her Fifth Amendment privilege by not testifying at trial, any reference by the State or the trial court about the defendants election not to testify violates the Fifth Amendment.

A witness who is not a criminal defendant has the right under the Fifth Amendment privilege to refuse to answer a question if: (1) the answer may tend to incriminate the witness; (2) the witness is not immune from prosecution; and (3) the witness has timely invoked the privilege in response to a question. However, a witness who testified on direct examination cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination.

A judge has the discretion whether (1) to advise a witness of his or her right not to answer incriminating questions, and (2) to allow the State or the defendant to call a witness to invoke the privilege before the jury.

A witness who invokes the Fifth Amendment privilege against self-incrimination in any criminal or civil hearing or proceeding, including a grand jury, may be ordered to testify or produce other information when the witness has been granted immunity under Article 61 of Chapter 15A. Although an order granting immunity may be issued in any criminal or civil matter, only a district attorney is authorized to apply for an order, and the application must be made before a superior court judge. G.S. 15A-1052(a). Thus, almost all applications involve criminal proceedings.

If the State later prosecutes the immunized witness, it has the burden of proving at the later trial that its evidence was obtained completely independent of the compelled testimony or information provided by the immunized witness. Although the standard of the burden of proof has not been decided by North Carolina appellate courts, they likely would follow federal law and require proof by a preponderance of evidence. United States v. Slough, 641 F.3d 544, 550 (D.C. Cir. 2011).

This has been a brief overview. If you are interested in a more detailed discussion, you may access my recently-published section, Fifth Amendment Privilege and Grant of Immunity, in the North Carolina Superior Court Judges Benchbook, which is available here.

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Asserting the Fifth Amendment in Court and the Granting of ...

Amendment V – u-s-history.com

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 offence to be twice put in jeopardy of 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.

The final phrases of the Fifth Amendment established the limitations on the principle of eminent domain. In the 20th century, the Fifth Amendment became most noted for its prohibition of forced self-incriminating testimony, and "I plead the Fifth" became a catchphrase for the amendment.

This application of the amendment is, however, uncontroversial and has not figured prominently in Supreme Court decisions. Much less clear is the meaning of the due process provision. A century ago, it was often argued that the Fifth Amendment prohibition against depriving an individual of liberty meant that the right to enter into contracts, which represents a liberty, is infringed when government regulations fix such things as minimum wages. This interpretation of due process has generally fallen out of favor.

Ratified in 1791

See Table of Amendments.

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What Does the Sixth Amendment Mean? To Whom Does it Apply?, Gideon v. Wainwright, Landmark Supreme Court CasesHe thought that amendment was one of the most important amendments. Others disagreed with him, arguing that because many state constitutions had their own Bills of Rights, it would not be necessary to protect citizens from abuse at the hands of ...http://www.landmarkcases.org/gideon/sixth.html

ARTICLE VState, 99 Nev. 149, at 150, 659 P.2d 878 (1983), State v. Eighth Judicial Dist. Court, 100 Nev. 90, at 104, 677 P.2d 1044 (1984), dissenting opinion, Kelch v. Director, Dept of Prisons, 10 F.3d 684, at 686 (9th Cir. 1993), Wicker v. State, 111 Nev. http://www.nevada-history.org/article_5.html

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Amendment V - u-s-history.com

"Fifth Amendment" Defined & Explained

'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 offence to be twice put in jeopardy of 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.'

The Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it 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.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72). A reasonable belief that information concerning income or assets might be used to establish criminal failure to file a tax return can support a claim of Fifth Amendment privilege. See U.S. v. Rendahl, 746 F.2d 553, 55-56 (9th Cir.'84).

The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis. Rendahl, 746 F.2d at 555, citing with approval U.S. v. Bell, 448 F.2d 40, 42 (9th Cir.'71) (Fifth Amendment challenge premature on appeal from enforcement order; appellant must present himself for questioning after enforcement and as to each question elect to raise or not to raise the defense).

The appropriate device for compelling answers to incriminating questions is a government grant of use immunity. See Sharp, 920 F.2d at 1172.

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"Fifth Amendment" Defined & Explained

US Government for Kids: Fifth Amendment – Ducksters

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From the Constitution

Here is the text of the Fifth Amendment from the Constitution:

"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 of 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."

The Grand Jury

The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence.

Double Jeopardy

The next section protects the person from being tried for the same crime more than once. This is called double jeopardy.

Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called "taking the fifth." The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves.

You've probably heard the police on TV say something like "you have the right to remain silent, anything you say or do may be used against you in a court of law" when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don't have to testify against themselves.

The amendment also states that a person has a right to "due process of law." Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system.

The last section says that the government can't take a person's private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it.

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US Government for Kids: Fifth Amendment - Ducksters

The Fifth Amendment, Decryption and Biometric Passcodes …

The spread of commercially available encryption products has made it harder for law enforcement officials to access to information that relates to criminal and national security investigations. In October, FBI Director Christopher Wray said that in an 11-month period, the FBI had been unable to extract data from more than 6,900 devices; that is over half of the devices it had attempted to unlock. Its a huge, huge problem, Wray said. One might think that a way around this problem is for the government to order the user to produce the password to the device. But such an order might face a big hurdle: the Fifth Amendment. A handful of cases have emerged in recent years on the applicability of the Fifth Amendment to demands for passwords to encrypted devices. The protections afforded by the amendment depend on, among other things, whether the password involves biometric verification via a unique physical feature, or the more typical string of characters (passcode). As we will see, the government has a bit more leeway under the Fifth Amendment to insist on the decryption of personal computing devices using biometric passwords thatas in the new iPhone Xare increasingly prevalent.

The Fifth Amendment

The Supreme Court recognizes the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence, but applies only when the accused is compelled to make a testimonial communication that is incriminating. For information to be testimonial, the Supreme Court has said, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information ... The expression of the contents of an individual's mind falls squarely within the protection of the Fifth Amendment.

The Fifth Amendment and Compelled Decryption: Biometric Verification vs. Passcodes

Biometric Verification

Courts are in relative accord that the Fifth Amendment doesnt protect against the production of physical features or acts. For example, the Fifth Amendment does not bar the compelled production of a persons voice, blood, handwriting or visage; although the features may be incriminating, they have no testimonial or communicative nature. Specifically, the court notes in United States v. Wade that[i]t is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. Relying on these cases, the Circuit Court of Virginia Beach and Court of Appeals of Minnesota agreed that, as with any physical feature, the government can compel a suspect to produce a biometric password. Indeed, the court in State v. Diamond held, the task that Diamond was compelled to performto provide his fingerprintis no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.

Notably, a federal district court in northern Illinois recently found that the production of a biometric password wasnt analogous to production of physical evidence. The court, citing Riley v. California, reasoned, We do not believe that a simple analogy that equates the limited protection afforded a fingerprint used for identification purposes to forced fingerprinting to unlock an Apple electronic device that potentially contains some of the most intimate details of an individual's life (and potentially provides direct access to contraband) is supported by Fifth Amendment jurisprudence. Although its reasoning is grounded in Fourth Amendment privacy concerns, the court opened the door for Fifth Amendment protections of biometric passwords. While biometric passwords are touted as more convenient, secure measures of authentication, they are less so when the government requests the production thereof.

Passcodes

In contrast to a purely physical biometric password, the Fifth Amendment offers greater protections for passcodes. Though not itself an encryption case, Fisher v. United States is the cornerstone of our understanding on how the Fifth Amendment applies to compelled production of a password. In Fisher, the IRS ordered two taxpayers to produce incriminating documents. The defendants challenged the order, claiming that the content of the documents was incriminating and therefore protected by the Fifth Amendment. The court disagreed, holding the governments request for the documents, d[id] not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers, on their face, might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. However, the court was clear: while the content was itself not protected, the act of production could be testimonial irrespective of the content. The court reasoned, [t]he act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. The court thus recognized that, in some instances, the Fifth Amendment protects the act of production.

Despite the act of production principle, the court in Fisher reasoned that [t]he existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he, in fact, has the papers. Under these circumstances ... no constitutional rights are touched. The question is not of testimony, but of surrender. This is referred to as the foregone conclusion exception to the act of production doctrine. In short, the Fifth Amendment is not implicated if the government knows of the existence, possession and authenticity of incriminating evidence, because the production thereof contains no testimonial import. Both the act of production and foregone conclusion doctrines are important to our understanding of how the Fifth Amendment protects against the compelled production of our passwords.

To date, only two federal appellate courts have applied the Fifth Amendment to compelled decryption in the context of passcodes. The Eleventh Circuit in In Re: Grand Jury Subpoena (U.S. v. Doe) held that the government cant compel a person to produce a password unless it knows the person possesses the password and knows, with reasonable particularity, that the device contains incriminating evidence. In the case, the government conducted an investigation of the defendant whom it suspected was sharing child pornography. Law enforcement executed a search warrant on his room and lawfully seized seven devices, all of which were encrypted. While the government knew the devices were the defendants, it didnt know whether any incriminating files were stored on the drives. Invoking the act of production doctrine, the court held that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files. Because the existence, possession and authenticity of the content on the device wasnt a foregone conclusion, the Fifth Amendment protected the act of producing a decrypted device. Many courts, both federal and state, agree with the Eleventh Circuits interpretation and application of the foregone conclusion doctrine. (For examples, see here, here and here.) It is worth noting that often times, as shown in U.S. v. Doe, the government employs the use of contempt orders to incentivize the compelled decryption of devices. But the efficacy of contempt sentences depends on whether the suspect is in custody and, when in custody, the suspects perceived consequences of conviction. First, if a suspect is dead, out of the country or otherwise absent, the threat of contempt is effectively useless as there is no one available to suffer the consequences of confinement. Second, even if a suspect may be held in contempt, the potential consequences of conviction may outweigh the consequences of a contempt sentence, thereby reducing the incentive to comply with an order to decrypt. For example, in U.S.v. Apple Macpro, the suspect has spent over two years in contemptand remains confined indefinitely, despite the fact that his conviction may not result in a life sentence. For this suspect and possibly many others, a contempt charge may be perceived as more lenient than the charge for the underlying crime.

A different interpretation has emerged in the Third Circuits decision in Apple Macpro. The court upheld a contempt order that was issued when the defendant refused to comply with a decryption order. The lower court applied the foregone conclusion doctrine using the Eleventh Circuits approach and ruled that because the government knew of incriminating content on the phone with reasonable particularity, there were no Fifth Amendment implications. However, while the appeals court approved, the judge also argued (in a footnote) that:

It is important to note that we are not concluding that the Governments knowledge of the content of the devices is necessarily the correct focus of the foregone conclusion inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is "I, John Doe, know the password for these devices." Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion.

Put simply, the court reasons that all the government needs to know in order to compel the production of a password is simply that the password exists, that it is in the possession of the suspect and is authentic. According to the court, when a suspect produces a password, that act is simply a narrow testimonial assertion relating only to the password, not the incriminating content on the device. To date, the Florida Court of Appeals is the only court to adopt this line of reasoning. Orin Kerr, writing on the application of the foregone conclusion doctrine, has a similar interpretation of it: To know whether entering a password implies testimony that is a foregone conclusion, the relevant question should therefore be whether the government already knows that the suspect knows the password. Commenting on Apple Macpro, Kerr notes, Its dicta, but its very strong dicta. The issue will live for another day without a circuit split. But given that I think the footnote is correct, I hope it will be followed in future cases.

Questions to Consider Concerning Evolving Password-Based Technology

Electronic device users face important questions of how secure they want their devicesand from whom. If ones primary desire is to guard against the government, biometric passwordssuch as Apples TouchID or FaceIDmay not deliver the desired protection. Apple may have a solution to address the concerns illustrated above. iPhone users can use TouchID (a fingerprint password) and, when necessary, tap the power button five times to temporarily disable the setting and return to a traditional passcode. While this has been deemed the cop button, the feature is more likely to be used in cases of emergency.

Moreover, the discussion in this post raises potential issues with password managers such as Dashlane and LastPass. These applications use fingerprint ID technology to guard dozens, if not hundreds, of the users passwords. This presents two issues. First, biometric passwords are afforded fewer constitutional protections. Second, and more importantly, the application, if accessed by the government, would present law enforcement with an entire catalog of a users character-based passcodes. The act of producing the passcodes contained in the application wouldnt require the user to produce any testimonial information and thus the traditional Fifth Amendment implications concerning the compelled production of the stored passcodes would be limited. Under the principles discussed, these types of applications may provide users the least amount of protection against the government.

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The Fifth Amendment, Decryption and Biometric Passcodes ...