Fifth Amendment privilege in Arizona

2018If the witness validly invokes the Fifth Amendment privilege by “showing a reasonable ground to apprehend danger to [himself] from his being compelled to answer, the defendant’s right to compulsory process must yield to the witness’s privilege not to incriminate himself.” Id. at 216, ¶ 10 (citations omitted); see also State v. 2This sentence was also consecutive to his sentence in CR2013-433944-001. 4 STATE v. CLAYBORN Decision of the Court Martinez, 218 Ariz. 421, 428, ¶ 27 (2008) (“[W]hen a witness has continued reason to fear prosecution, the defendant’s Sixth Amendment right to compel that

2018If the witness validly invokes the Fifth Amendment privilege by “showing a reasonable ground to apprehend danger to [himself] from his being compelled to answer, the defendant’s right to compulsory process must yield to the witness’s privilege not to incriminate himself.” Id. at 216, ¶ 10 (citations omitted); see also State v. 2This sentence was also consecutive to his sentence in CR2013-433944-001. 4 STATE v. CLAYBORN Decision of the Court Martinez, 218 Ariz. 421, 428, ¶ 27 (2008) (“[W]hen a witness has continued reason to fear prosecution, the defendant’s Sixth Amendment right to compel that

2020State v. McDaniel, 136 Ariz. 188, 194 (1983) (“It is well settled that in criminal cases the jury is not entitled to draw any inferences from the decision of a witness to exercise his Fifth Amendment privilege.”), abrogated on other grounds by State v. Walton, 159 Ariz. 571 (1989). ¶13 And last, James argues the court should have allowed him to question Granadeno about his arrest for drugs and paraphernalia and whether it motivated him to testify favorably for the State at the third trial.

2019State v. Corrales, 138 Ariz. 583 , 587 n.2 (1983) (adverse inference may not be argued from party’s failure to call a witness who “can be physically produced but cannot be compelled to testify”); State v. McDaniel, 136 Ariz. 188, 194 (1983) (“It is well settled that in criminal cases the jury is not entitled to draw any inferences from the decision of a witness to exercise his Fifth Amendment privilege.”).

2025She also argues the superior court erroneously admitted later statements because she was in Miranda custody and police had not yet advised her of her rights. ¶12 The Fifth Amendment privilege against self-incrimination, applicable here through the Fourteenth Amendment, “is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona, 384 U.S. 436, 467 (1966).

2025She also argues the superior court erroneously admitted later statements because she was in Miranda custody and police had not yet advised her of her rights. ¶12 The Fifth Amendment privilege against self-incrimination, applicable here through the Fourteenth Amendment, “is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona, 384 U.S. 436, 467 (1966).

2019But pursuant to the two-prong test established by Namet v. United States, 373 U.S. 179 (1963), the court must refuse to allow the witness to invoke before the jury if the prosecution intends “to build its case out of inferences arising from the use of the privilege,” or the invocation will add “critical weight to the [S]tate’s case, thus prejudicing [the] defendant because of his inability to cross-examine.” Corrales, 138 Ariz. at 589 (citing Namet, 373 U.S. at 186–87). ¶17 Hand has not demonstrated how the court’s decision to allow Crawford to exercise her Fifth Amendment privilege before the

2019State v. Corrales, 138 Ariz. 583 , 587 n.2 (1983) (adverse inference may not be argued from party’s failure to call a witness who “can be physically produced but cannot be compelled to testify”); State v. McDaniel, 136 Ariz. 188, 194 (1983) (“It is well settled that in criminal cases the jury is not entitled to draw any inferences from the decision of a witness to exercise his Fifth Amendment privilege.”).

2019See State v. Escalante, 245 Ariz. 135 , 141–42, ¶¶ 17–21 (2018). ¶16 “A trial court’s decision whether to allow a party to call a witness before the jury who will assert his Fifth Amendment privilege is reviewed for an abuse of discretion.” State v. Harrod, 218 Ariz. 268, 275, ¶ 19 (2008).

2018“A trial court’s decision whether to allow a party to call a witness before the jury who will assert his Fifth Amendment privilege is reviewed for an abuse of discretion.” State v. Harrod, 218 Ariz. 268, 275, ¶ 19 (2008). ¶9 Defendants have a Sixth Amendment right to “offer the testimony of witnesses, and to compel their attendance, if necessary, in order to present a defense.” Id. at ¶ 20 (quoting Washington v. Texas, 288 U.S. 14, 19 (1967)).

2024A trial court’s reliance on a defendant’s failure to publicly admit guilt “to aggravate” the sentence imposed “offends the Fifth Amendment privilege against self-incrimination.” State v. Hardwick, 183 Ariz. 649, 656 (App. 1995). ¶16 Here, the trial court told Nunez that she did not believe he recognized his “actions were wrongful” or that he “should not have done” what he did.

2024A trial court’s reliance on a defendant’s failure to publicly admit guilt “to aggravate” the sentence imposed “offends the Fifth Amendment privilege against self-incrimination.” State v. Hardwick, 183 Ariz. 649, 656 (App. 1995). ¶16 Here, the trial court told Nunez that she did not believe he recognized his “actions were wrongful” or that he “should not have done” what he did.

2016See State v. Mills, 196 Ariz. 269, 276, ¶ 31 (App. 1999) (“If the witness validly asserts his Fifth Amendment privilege by showing ‘a reasonable ground to apprehend danger to the witness from his being compelled to answer,’ . . . the defendant’s right to compulsory process must yield to the witness’s privilege not to incriminate himself.”) (quoting United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir. 1976)) (citations omitted).

2008For a witness to properly invoke his Fifth Amendment privilege, he must show a “reasonable ground to apprehend danger to [himself] from his being compelled to answer.” State v. Mills, 196 Ariz. 269, 276, ¶31 , 995 P.2d 705, 712 (App.1999) (quoting United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir.1976)).

2016See State v. Mills, 196 Ariz. 269, 276, ¶ 31 (App. 1999) (“If the witness validly asserts his Fifth Amendment privilege by showing ‘a reasonable ground to apprehend danger to the witness from his being compelled to answer,’ . . . the defendant’s right to compulsory process must yield to the witness’s privilege not to incriminate himself.”) (quoting United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir. 1976)) (citations omitted).

2008For a witness to properly invoke his Fifth Amendment privilege, he must show a “reasonable ground to apprehend danger to [himself] from his being compelled to answer.” State v. Mills, 196 Ariz. 269, 276, ¶31 , 995 P.2d 705, 712 (App.1999) (quoting United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir.1976)).

2017See Buchanan v. Kentucky, 483 U.S. 402, 422-23 , 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987) (when a defendant requests a psychiatric exam or presents expert testimony in support of a psychiatric defense, he has no Fifth Amendment privilege against the admission of statements made during the psychiatric exam); State v. Mauro, 159 Ariz, 186, 195, 766 P.2d 59, 68 (1988) (holding that “the [F]ifth [Amendment protections ... are inapplicable” when a defendant asserts an insanity defense and requests the court appoint an expert to examine him); State v. Smith, 131 Ariz. 29, 34 , 638 P.2d 696, 700 (1981)

2017See Buchanan v. Kentucky, 483 U.S. 402, 422-23 , 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987) (when a defendant requests a psychiatric exam or presents expert testimony in support of a psychiatric defense, he has no Fifth Amendment privilege against the admission of statements made during the psychiatric exam); State v. Mauro, 159 Ariz, 186, 195, 766 P.2d 59, 68 (1988) (holding that “the [F]ifth [Amendment protections ... are inapplicable” when a defendant asserts an insanity defense and requests the court appoint an expert to examine him); State v. Smith, 131 Ariz. 29, 34 , 638 P.2d 696, 700 (1981)

2001State v. Henry, 176 Ariz. 569, 575 , 863 P.2d 861, 867 (1993); see also LaGrand, 153 Ariz. at 27 , 734 P.2d at 569 . 2 If a non-defendant declarant asserts *373 the Fifth Amendment privilege against self-incrimination, he is deemed unavailable as a witness.

2001State v. Henry, 176 Ariz. 569, 575 , 863 P.2d 861, 867 (1993); see also LaGrand, 153 Ariz. at 27 , 734 P.2d at 569 . 2 If a non-defendant declarant asserts *373 the Fifth Amendment privilege against self-incrimination, he is deemed unavailable as a witness.

2016P. 11.7(a)-(b)(1); State v. Fitzg *255 erald, 232 Ariz. 208, 216, ¶ 43 , 303 P.3d 519, 627 (2013) (indicating, by citing to State v. Tallabas, 155 Ariz. 321 , 746 P.2d 491 (App. 1987), that Rule 11.7 is grounded in the Fifth Amendment’s privilege against compelled self-incrimination). ¶13 Although Rule 11.7 protects a defendant’s privilege against self-incrimination, the rule also recognizes that a defendant can consent to the use of those statements.

2016P. 11.7(a)-(b)(1); State v. Fitzg *255 erald, 232 Ariz. 208, 216, ¶ 43 , 303 P.3d 519, 627 (2013) (indicating, by citing to State v. Tallabas, 155 Ariz. 321 , 746 P.2d 491 (App. 1987), that Rule 11.7 is grounded in the Fifth Amendment’s privilege against compelled self-incrimination). ¶13 Although Rule 11.7 protects a defendant’s privilege against self-incrimination, the rule also recognizes that a defendant can consent to the use of those statements.

2025Thus, a suspect who simply remains quiet “has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.” Salinas, 570 U.S. at 188 . ¶20 Once an individual invokes his right to remain silent, police must cease questioning.

2023See Salinas, 570 U.S. at 183–84 (explaining the privilege against self-incrimination and requirements for invocation); McNeil v. Wisconsin, 501 U.S. 171 , 177–78 (1991) (describing the purpose of the right to counsel and requirements for invocation).

2020"Preclusion of evidence obtained in violation of Miranda is based on the Fifth Amendment privilege against self-incrimination." Id. (citations omitted).

2020"Preclusion of evidence obtained in violation of Miranda is based on the Fifth Amendment privilege against self-incrimination." Id. (citations omitted).

2019V, XIV, § 1; see Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “that the Fifth Amendment’s exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States”).

2014V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “that the Fifth Amendment’s exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States”).

2007These factors apply to juveniles, “ ‘but with additional elements that bear upon a child’s perceptions and vulnerability, including the child’s age, maturity and experience with law enforcement and the presence of a parent or other supportive adult.’ ” In re Jorge D., 202 Ariz. 277, ¶ 15 , 43 P.3d 605, 608-09 (App.2002), quoting State v. Doe, 130 Idaho 811 , 948 P.2d 166, 173 (Ct.App.1997).

2007These factors apply to juveniles, “ ‘but with additional elements that bear upon a child’s perceptions and vulnerability, including the child’s age, maturity and experience with law enforcement and the presence of a parent or other supportive adult.’ ” In re Jorge D., 202 Ariz. 277, ¶ 15 , 43 P.3d 605, 608-09 (App.2002), quoting State v. Doe, 130 Idaho 811 , 948 P.2d 166, 173 (Ct.App.1997).

2001State v. Henry, 176 Ariz. 569, 575 , 863 P.2d 861, 867 (1993); see also LaGrand, 153 Ariz. at 27 , 734 P.2d at 569 . 2 If a non-defendant declarant asserts *373 the Fifth Amendment privilege against self-incrimination, he is deemed unavailable as a witness.

2001State v. Henry, 176 Ariz. 569, 575 , 863 P.2d 861, 867 (1993); see also LaGrand, 153 Ariz. at 27 , 734 P.2d at 569 . 2 If a non-defendant declarant asserts *373 the Fifth Amendment privilege against self-incrimination, he is deemed unavailable as a witness.

2024Evid. 804(a)(1); see also State v. Lopez, 159 Ariz. 52, 54 (1988) (witness who asserted Fifth Amendment privilege not to testify “appropriately determined to be unavailable”).

2001See State v. Lopez, 159 Ariz. 52, 54 , 764 P.2d 1111, 1113 (1988) (defendant successfully sought admission of roommate’s statements pursuant to Rule 804(b)(3) after roommate asserted Fifth Amendment privilege). ¶ 22 Here, the defendant is the declarant seeking admission of his own statements to police without taking the stand to testify.

1996The Fifth Amendment privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761 , 86 S.Ct. 1826, 1830 , 16 L.Ed.2d 908 (1966).

1996The Fifth Amendment privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761 , 86 S.Ct. 1826, 1830 , 16 L.Ed.2d 908 (1966).

1989Because Gault requires juveniles generally to be afforded the same protections as adults in similar situations, we believe the standards set forth in Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), dealing with adult pleas of guilty are likewise applicable to juveniles who admit delinquency allegations in juvenile Court.

1989Because Gault requires juveniles generally to be afforded the same protections as adults in similar situations, we believe the standards set forth in Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), dealing with adult pleas of guilty are likewise applicable to juveniles who admit delinquency allegations in juvenile Court.

2019But pursuant to the two-prong test established by Namet v. United States, 373 U.S. 179 (1963), the court must refuse to allow the witness to invoke before the jury if the prosecution intends “to build its case out of inferences arising from the use of the privilege,” or the invocation will add “critical weight to the [S]tate’s case, thus prejudicing [the] defendant because of his inability to cross-examine.” Corrales, 138 Ariz. at 589 (citing Namet, 373 U.S. at 186–87). ¶17 Hand has not demonstrated how the court’s decision to allow Crawford to exercise her Fifth Amendment privilege before the

2019But pursuant to the two-prong test established by Namet v. United States, 373 U.S. 179 (1963), the court must refuse to allow the witness to invoke before the jury if the prosecution intends “to build its case out of inferences arising from the use of the privilege,” or the invocation will add “critical weight to the [S]tate’s case, thus prejudicing [the] defendant because of his inability to cross-examine.” Corrales, 138 Ariz. at 589 (citing Namet, 373 U.S. at 186–87). ¶17 Hand has not demonstrated how the court’s decision to allow Crawford to exercise her Fifth Amendment privilege before the

1976In State v. Cota, 102 Ariz. 416 , 432 P.2d 428 (1967), the defense objected to the calling of the codefendant Valenzuela by the prosecution as a witness, with the knowledge of the witness’s intention to invoke his Fifth Amendment privilege against self-incrimination.

1976In State v. Cota, 102 Ariz. 416 , 432 P.2d 428 (1967), the defense objected to the calling of the codefendant Valenzuela by the prosecution as a witness, with the knowledge of the witness’s intention to invoke his Fifth Amendment privilege against self-incrimination.

2015Cf. Simmons v. United States, 390 U.S. 377, 394 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968) (holding that forcing a defendant to either waive a valid Fourth Amendment claim or waive his Fifth Amendment privilege against self-incrimination is unconstitutional); Brooks v. Tennessee, 406 U.S. 605, 610-11 , 92 S.Ct. 1891 , 32 L.Ed.2d 358 (1972) (holding that a statute requiring defendant to testify, if at all, before any other defense witnesses is unconstitutional).

2015Cf. Simmons v. United States, 390 U.S. 377, 394 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968) (holding that forcing a defendant to either waive a valid Fourth Amendment claim or waive his Fifth Amendment privilege against self-incrimination is unconstitutional); Brooks v. Tennessee, 406 U.S. 605, 610-11 , 92 S.Ct. 1891 , 32 L.Ed.2d 358 (1972) (holding that a statute requiring defendant to testify, if at all, before any other defense witnesses is unconstitutional).

2002However, “[i]f the witness validly asserts his Fifth Amendment privilege by showing ‘a reasonable ground to apprehend danger to the witness from his being compelled to answer,’ the defendant’s right to compulsory process must yield to the witness’s privilege not to incriminate himself.” Id. ((citing United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir.1976)); see State v. Cornejo, 139 Ariz. 204, 208 , 677 P.2d 1312, 1316 (App.1983); State v. Fisher, 141 Ariz. 227, 243 , 686 P.2d 750, 766 (1984)).

2002However, “[i]f the witness validly asserts his Fifth Amendment privilege by showing ‘a reasonable ground to apprehend danger to the witness from his being compelled to answer,’ the defendant’s right to compulsory process must yield to the witness’s privilege not to incriminate himself.” Id. ((citing United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir.1976)); see State v. Cornejo, 139 Ariz. 204, 208 , 677 P.2d 1312, 1316 (App.1983); State v. Fisher, 141 Ariz. 227, 243 , 686 P.2d 750, 766 (1984)).