Fifth Amendment privilege in Colorado

2024P. 35(c) motion (the first motion), in which he asserted, as relevant here, a different Fifth Amendment violation from the one presented in his direct appeal: the trial court erred by denying his motion to suppress the inculpatory statements he made during a custodial interrogation without a valid waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

2024P. 35(c) motion (the first motion), in which he asserted, as relevant here, a different Fifth Amendment violation from the one presented in his direct appeal: the trial court erred by denying his motion to suppress the inculpatory statements he made during a custodial interrogation without a valid waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

2016Kan. 2009) (rejecting the defendant’s argument that a sex offender treatment requirement of his mandatory supervised release violated his Fifth Amendment privilege against self-incrimination when the defendant had, in effect, asserted “a general and blanket Fifth Amendment privilege against participating in a sex offender treatment program”); People v. Miller, 256 Cal. Rptr. 587 , 589–90 (Cal. Ct. App. 1989) (“The mere requirement of taking [a polygraph] test in itself is insufficient to constitute an infringement of the privilege.”); State v. Widmyer, 313 P.3d 770 , 774–75 (Idaho Ct. App. 201

2016Thus, although a state cannot revoke a defendant’s probation for a valid invocation of his or her privilege against self-incrimination, see Murphy, 465 U.S. at 434–35, it may do so when, as here, the defendant did not properly invoke his or her Fifth Amendment privilege but rather completely refused to participate in treatment. ¶29 Third, although Ruch expressed concern regarding what might potentially be asked during sex offender treatment, he had not been asked a single question requiring him to incriminate himself, the probation department had not threatened him with revocation, and nothing

2016And while refusing to testify may be necessary to prevent a waiver of the privilege, “[c]ourts generally have refused to find a himself in a criminal case.” Father does not argue that article II, section 18 provides any greater protection than the Fifth Amendment at trial. 13 [F]ifth [A]mendment violation when, as in this case, the refusal to testify does not automatically lead to sanctions.” Rosenberg v. Bd. of Educ., 710 P.2d 1095 , 1100 n.11 (Colo. 1985). ¶ 34 In Asplin, a division of this court held that although in a criminal case instructing the jury that it may draw an inference of guil

2016And while refusing to testify may be necessary to prevent a waiver of the privilege, “[c]ourts generally have refused to find a himself in a criminal case.” Father does not argue that article II, section 18 provides any greater protection than the Fifth Amendment at trial. 13 [F]ifth [A]mendment violation when, as in this case, the refusal to testify does not automatically lead to sanctions.” Rosenberg v. Bd. of Educ., 710 P.2d 1095 , 1100 n.11 (Colo. 1985). ¶ 34 In Asplin, a division of this court held that although in a criminal case instructing the jury that it may draw an inference of guil

2008Co., 85 P.3d 135, 142-43 (Colo.2004) (quoting In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir.1979)); see also Hoffman v. United States, 341 U.S. 479, 486 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951) (the Fifth Amendment privilege covers information which would provide "a link in the chain of evidence" needed for criminal prosecution). "[A] State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself." Lefkowitz v. Cunningham, 431 U.S. 801, 805 , 97 S.Ct. 2132, 2135-36 , 53 L.Ed

2008Co., 85 P.3d 135, 142-43 (Colo.2004) (quoting In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir.1979)); see also Hoffman v. United States, 341 U.S. 479, 486 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951) (the Fifth Amendment privilege covers information which would provide "a link in the chain of evidence" needed for criminal prosecution). "[A] State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself." Lefkowitz v. Cunningham, 431 U.S. 801, 805 , 97 S.Ct. 2132, 2135-36 , 53 L.Ed

2025Co., 85 P.3d 135, 139 (Colo. 2004), and gives a person charged with indirect punitive contempt the same Fifth Amendment privilege afforded to a defendant in a criminal proceeding, including the right not to take the witness stand, In re 4 Marriage of Alverson, 981 P.2d 1123, 1125 (Colo. App. 1999).

2025Co., 85 P.3d 135, 139 (Colo. 2004), and gives a person charged with indirect punitive contempt the same Fifth Amendment privilege afforded to a defendant in a criminal proceeding, including the right not to take the witness stand, In re 4 Marriage of Alverson, 981 P.2d 1123, 1125 (Colo. App. 1999).

2025But “[t]he right to present a defense is not absolute, . . . and it ‘does not include the right to compel a witness to waive his or her Fifth Amendment privilege.’” Id. (quoting People v. Coit, 50 P.3d 936, 938 (Colo. App. 2002)). 4.

2015"When a defendant's rights under the Sixth Amendment collide with a witness's Fifth Amendment rights, the defendant's right to compulsory process must give way to the witness's privilege not to give self-incriminating testimony.” People v. Coit, 50 P.3d 936, 938 (Colo.App.2002) (collecting cases). ¶ 82 Thus, when a witness properly invokes his or her Fifth Amendment privilege, there is no violation of the defendant’s right to present a defense.

2025Because a party is not 9 required to give advance notice before invoking the Fifth Amendment, see generally People v. Austin, 412 P.2d 425, 427 (Colo. 1966) (“The proper procedure is to wait until a question which tends to be incriminating has been asked and then decline to answer.”), the magistrate should not have included that consideration in addressing mother’s request for sanctions.

2025In doing so, he relies on the supreme court’s observation in People v. Austin that “[i]t is well settled that the privilege against self-incrimination may not be asserted in advance of the questions 10 actually propounded,” 412 P.2d 425, 427 (Colo. 1966), and argues that “[t]he court erred when it permitted and relied upon [J.X.’s] blanket assertion of her [Fifth] Amendment right without ever having her take the stand and posing relevant questions to her.” ¶ 17 Xia correctly sets forth this “basic proposition” espoused in Austin and repeated often by the Colorado Supreme Court.

2016See, e.g., Antelope, 395 F.3d at 1140 (rejecting the government’s argument that it had "the right to compel [the defendant] to incriminate himself, prosecute him, and force him to litigate the admissibility of each piece of evidence in future criminal proceedings" because it was only then that the defendant could properly assert his Fifth Amendment privilege); Bleeke, 6 N.E.3d at 926–27 (rejecting the argument that because a Fifth Amendment violation can occur only when an incriminating statement is used against a defendant in a criminal trial, the defendant’s attempt to challenge a sex offend

2016See, e.g., Antelope, 395 F.3d at 1140 (rejecting the government’s argument that it had "the right to compel [the defendant] to incriminate himself, prosecute him, and force him to litigate the admissibility of each piece of evidence in future criminal proceedings" because it was only then that the defendant could properly assert his Fifth Amendment privilege); Bleeke, 6 N.E.3d at 926–27 (rejecting the argument that because a Fifth Amendment violation can occur only when an incriminating statement is used against a defendant in a criminal trial, the defendant’s attempt to challenge a sex offend

2006The Fifth Amendment privilege against self-incrimination and right to counsel are personal rights, and "nothing in randa or its progeny has indicated that the [Fifth Amendment] right to counsel may be invoked by anyone other than the suspect." People v. Rosales, 911 P.2d 644, 651 (Colo. App.1995); see also Moran v. Burbine 475 U.S. 412 , 488 n. 4, 106 S.Ct. 1135, 1147 , 89 L.Ed.2d 410 (1986) (during interrogation, police rebuffed attorney who had been hired by a Mirandized suspect's sister, where suspect had not requested assistance of counsel); United States v. Nobles, 422 U.S. 225, 233 , 95

2006The Fifth Amendment privilege against self-incrimination and right to counsel are personal rights, and "nothing in randa or its progeny has indicated that the [Fifth Amendment] right to counsel may be invoked by anyone other than the suspect." People v. Rosales, 911 P.2d 644, 651 (Colo. App.1995); see also Moran v. Burbine 475 U.S. 412 , 488 n. 4, 106 S.Ct. 1135, 1147 , 89 L.Ed.2d 410 (1986) (during interrogation, police rebuffed attorney who had been hired by a Mirandized suspect's sister, where suspect had not requested assistance of counsel); United States v. Nobles, 422 U.S. 225, 233 , 95

2006See Bellis v. United States, 417 U.S. 85 , 94 S.Ct. 2179 , 40 L.Ed.2d 678 (1974) (partner *1123 may not refuse to produce partnership documents).

2006See Bellis v. United States, 417 U.S. 85 , 94 S.Ct. 2179 , 40 L.Ed.2d 678 (1974) (partner *1123 may not refuse to produce partnership documents).

2015If he declines to answer certain questions on Fifth Amendment grounds, it is not error to require him to invoke the privilege in the presence of the jury; and, in that event, instructions [that the jury can draw an adverse inference] are appropriate." {citation omitted)); see also Baxter v. Palmigiano, 425 U.S. 308, 318 , 96 S.Ct. 1551 , 47 LEd.2d 810 (1976) ("[The Fifth Amendment does not forbid, adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them ...."); Robert Heidt, The Conjurer's Circle-The Fifth Amendment

2015If he declines to answer certain questions on Fifth Amendment grounds, it is not error to require him to invoke the privilege in the presence of the jury; and, in that event, instructions [that the jury can draw an adverse inference] are appropriate." {citation omitted)); see also Baxter v. Palmigiano, 425 U.S. 308, 318 , 96 S.Ct. 1551 , 47 LEd.2d 810 (1976) ("[The Fifth Amendment does not forbid, adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them ...."); Robert Heidt, The Conjurer's Circle-The Fifth Amendment

2005Applying Garrity and its progeny, the Colorado Supreme Court, in People v. Sapp, supra, adopted a two-prong test to determine whether a public employee’s statements were compelled by a threat of discharge from employment: (1) the employee must subjectively believe that he or she will be fired for asserting the Fifth Amendment privilege against self-incrimination, and (2) that belief *1025 must be objectively reasonable under the circumstances.

2005Applying Garrity and its progeny, the Colorado Supreme Court, in People v. Sapp, supra, adopted a two-prong test to determine whether a public employee’s statements were compelled by a threat of discharge from employment: (1) the employee must subjectively believe that he or she will be fired for asserting the Fifth Amendment privilege against self-incrimination, and (2) that belief *1025 must be objectively reasonable under the circumstances.

2016By contrast, eighteen years later, in McKune v. Lile, 536 U.S. 24 (2002), the Supreme Court was directly faced with the question whether a prisoner’s Fifth Amendment privilege was violated by transferring him to a maximum-security unit, with the accompanying loss of privileges and liberty that transfer entailed, for refusing to participate in a Sexual Abuse Treatment Program on the ground that it would have required disclosures of his criminal history.

2016By contrast, eighteen years later, in McKune v. Lile, 536 U.S. 24 (2002), the Supreme Court was directly faced with the question whether a prisoner’s Fifth Amendment privilege was violated by transferring him to a maximum-security unit, with the accompanying loss of privileges and liberty that transfer entailed, for refusing to participate in a Sexual Abuse Treatment Program on the ground that it would have required disclosures of his criminal history.

2014E.g., Colorado v. Spring, 479 U.S. 564, 574-77 , 107 S.Ct. 851 , 93 L.Ed.2d 954 (1987) (holding that a suspect need not be advised or know that he will actually be questioned about a murder, because "[the Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege"); Moran v. Burbine, 475 U.S. 412, 421-22 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986) ("[Wle have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whe

2014E.g., Colorado v. Spring, 479 U.S. 564, 574-77 , 107 S.Ct. 851 , 93 L.Ed.2d 954 (1987) (holding that a suspect need not be advised or know that he will actually be questioned about a murder, because "[the Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege"); Moran v. Burbine, 475 U.S. 412, 421-22 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986) ("[Wle have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whe

2014Dickerson v. United States, 530 U.S. 428, 433 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000).

2014Dickerson v. United States, 530 U.S. 428, 433 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000).

2008Co., 85 P.3d 135, 142-43 (Colo.2004) (quoting In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir.1979)); see also Hoffman v. United States, 341 U.S. 479, 486 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951) (the Fifth Amendment privilege covers information which would provide "a link in the chain of evidence" needed for criminal prosecution). "[A] State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself." Lefkowitz v. Cunningham, 431 U.S. 801, 805 , 97 S.Ct. 2132, 2135-36 , 53 L.Ed

2008Co., 85 P.3d 135, 142-43 (Colo.2004) (quoting In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir.1979)); see also Hoffman v. United States, 341 U.S. 479, 486 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951) (the Fifth Amendment privilege covers information which would provide "a link in the chain of evidence" needed for criminal prosecution). "[A] State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself." Lefkowitz v. Cunningham, 431 U.S. 801, 805 , 97 S.Ct. 2132, 2135-36 , 53 L.Ed

2013Thus, in the probation context, "[Ilf, as a condition of probation, a probationer is required to participate in therapy which involves truthfully answering questions designed to solicit incriminating responses, no Fifth Amendment violation cceurs unless 'the State, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation.'" Elsbach, 934 P.2d at 881 (quoting Minnesota v. Murphy, 465 U.S. 420, 435 , 104 S.Ct. 1136 , 79 L.Ed.2d 409 (1984)). [ 51 In United States v. Antelope, 395 F.3d 1128, 1131 (9th Cir.2005), the trial court repeatedly se

2007Cf. Minnesota v. Murphy, 465 U.S. 420, 431-35 , 104 S.Ct. 1136, 1144-46 , 79 LEd.2d 409 (1984)(although probation officer could compel defendant's presence and truthful answers, the setting was not inherently coercive without arrest and without assertion that invocation of Fifth Amendment privilege would lead to revocation of probation); People v. Elsbach, 934 P.2d 877, 881 (Colo.App.1997) (even if a probationer is required to submit to questioning, the Fifth Amendment right against compelled self-incrimination is not violated unless the state threatens to revoke probation on the basis of the

1999In Brown v. United States, 356 U.S. 148, 154-55 , 78 S.Ct. 622, 626 , 2 L.Ed.2d 589, 596-97 (1958), the United States Supreme Court addressed the import of discussing a particular subject on direct examination: If [a defendant] takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. ‘(H)e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those

1999In Brown v. United States, 356 U.S. 148, 154-55 , 78 S.Ct. 622, 626 , 2 L.Ed.2d 589, 596-97 (1958), the United States Supreme Court addressed the import of discussing a particular subject on direct examination: If [a defendant] takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. ‘(H)e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those

2022The Law ¶ 46 “Miranda sought to address the problem of how the Fifth Amendment privilege against compelled self-incrimination could be protected from ‘the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation.’” People v. 21 Davis, 2019 CO 84, ¶ 16 (quoting Berkemer v. McCarty, 468 U.S. 420, 428 (1984)).

2022The Law ¶ 46 “Miranda sought to address the problem of how the Fifth Amendment privilege against compelled self-incrimination could be protected from ‘the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation.’” People v. 21 Davis, 2019 CO 84, ¶ 16 (quoting Berkemer v. McCarty, 468 U.S. 420, 428 (1984)).

2022People v. Payne, 2019 COA 167, ¶ 5 . ¶ 38 The decision whether to strike a witness’s testimony based on the invocation of the Fifth Amendment privilege should focus on “whether the sought answer was closely related to the commission of the crime, or involved collateral or cumulative testimony concerning credibility.” Ray, 109 P.3d at 1002 (quoting People v. Coca, 39 Colo. App. 264, 268 , 564 P.2d 431, 434 (1977)).

2022People v. Payne, 2019 COA 167, ¶ 5 . ¶ 38 The decision whether to strike a witness’s testimony based on the invocation of the Fifth Amendment privilege should focus on “whether the sought answer was closely related to the commission of the crime, or involved collateral or cumulative testimony concerning credibility.” Ray, 109 P.3d at 1002 (quoting People v. Coca, 39 Colo. App. 264, 268 , 564 P.2d 431, 434 (1977)).