Fifth Amendment privilege in Massachusetts

2016In Miranda v. Arizona, 384 U.S. 436, 469 (1966), the United States Supreme Court recognized that the right to have counsel present at a custodial interrogation is “indispensable to the protection of the Fifth Amendment privilege.” See Johnson v. New Jersey, 384 U.S. 719, 729 (1966) (“Our opinion in Miranda makes it clear that the prime purpose of these rulings is to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice”).

2016In Miranda v. Arizona, 384 U.S. 436, 469 (1966), the United States Supreme Court recognized that the right to have counsel present at a custodial interrogation is “indispensable to the protection of the Fifth Amendment privilege.” See Johnson v. New Jersey, 384 U.S. 719, 729 (1966) (“Our opinion in Miranda makes it clear that the prime purpose of these rulings is to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice”).

2017The judge found that statement was not sufficiently reliable. 15 In light of the defendant's acquittal on the kidnapping and assault charges on November 9, 2013, we need not address the reliability of Jane's statements regarding those allegations. 16 The judge conducted an in camera hearing with Rodriguez and her counsel pursuant to Commonwealth v. Martin, 423 Mass. 496 (1996), to determine whether the invocation of her Fifth Amendment privilege was valid.

2017The judge found that statement was not sufficiently reliable. 15 In light of the defendant's acquittal on the kidnapping and assault charges on November 9, 2013, we need not address the reliability of Jane's statements regarding those allegations. 16 The judge conducted an in camera hearing with Jane and her counsel pursuant to Commonwealth v. Martin, 423 Mass. 496 (1996), to determine whether the invocation of her Fifth Amendment privilege was valid.

2025See Pixley v. Commonwealth, 453 Mass. 827, 834 (2009) ("witness's valid assertion of the Fifth Amendment privilege against self-incrimination trumps a defendant's right to call the witness"). 3 The victim provided the officers with the defendant's address and stated that he "lived in the basement." 7 434 Mass. 418, 438 (2001) (no privacy interest implicated by police looking at information they already have).

2025See Pixley v. Commonwealth, 453 Mass. 827, 834 (2009) ("witness's valid assertion of the Fifth Amendment privilege against self-incrimination trumps a defendant's right to call the witness"). 3 The victim provided the officers with the defendant's address and stated that he "lived in the basement." 7 434 Mass. 418, 438 (2001) (no privacy interest implicated by police looking at information they already have).

2010See Commonwealth v. Drumgold, 423 Mass. 230, 247-248 (1996) (a witness’s valid assertion of the Fifth Amendment privilege against selfincrimination trumps a defendant’s right to call the witness). 3.

2010See Commonwealth v. Drumgold, 423 Mass. 230, 247-248 (1996) (a witness’s valid assertion of the Fifth Amendment privilege against selfincrimination trumps a defendant’s right to call the witness). 3.

1982We consider whether the Fifth Amendment privilege against self-incrimination, applicable to the States through the Fourteenth Amendment to the Federal Constitution, see Malloy v. Hogan, 378 U.S. 1, 3 (1964), is implicated in a c. 123A proceeding.

1982We consider whether the Fifth Amendment privilege against self-incrimination, applicable to the States through the Fourteenth Amendment to the Federal Constitution, see Malloy v. Hogan, 378 U.S. 1, 3 (1964), is implicated in a c. 123A proceeding.

2025See Commonwealth v. Canon, 373 Mass. 494, 499-500 (1977) (assertion of Fifth Amendment privilege constitutes unavailability for purposes of prior inconsistent statement).

2025See Commonwealth v. Canon, 373 Mass. 494, 499-500 (1977) (assertion of Fifth Amendment privilege constitutes unavailability for purposes of prior inconsistent statement).

2014Significantly, the Fifth Amendment privilege is not triggered where the government seeks to compel an individual to be the source of real or physical evidence by, for example, furnishing a blood sample, Schmerber v. California, 384 U.S. at 764-765 ; producing a voice exemplar, United States v. Dionisio, 410 U.S. 1, 5-7 (1973); standing in a lineup, United States v. Wade, 388 U.S. 218, 221-223 (1967); providing a handwriting exemplar, Gilbert v. California, 388 U.S. 263, 266-267 (1967); or putting on particular clothing, Holt v. United States, 218 U.S. 245, 252-253 (1910).

2014Significantly, the Fifth Amendment privilege is not triggered where the government seeks to compel an individual to be the source of real or physical evidence by, for example, furnishing a blood sample, Schmerber v. California, 384 U.S. at 764-765 ; producing a voice exemplar, United States v. Dionisio, 410 U.S. 1, 5-7 (1973); standing in a lineup, United States v. Wade, 388 U.S. 218, 221-223 (1967); providing a handwriting exemplar, Gilbert v. California, 388 U.S. 263, 266-267 (1967); or putting on particular clothing, Holt v. United States, 218 U.S. 245, 252-253 (1910).

2011It is true that the Fifth Amendment’s privilege against self-incrimination provides use and derivative use immunity, 5 see Kastigar v. United States, 406 U.S. 441, 453 (1972), rather than the full transactional immunity required by the Massachusetts Constitution.

2010See Kastigar v. United States, 406 U.S. 441, 444-445 (1972); Mass. G.

1995Id. at 599 . 13 In Commonwealth v. Brennan, 386 Mass. 772 (1982), the Supreme Judicial Court, considering the Fifth Amendment privilege, held that field sobriety tests do not involve testimonial or communicative evidence, which, the Court noted, the United States Supreme Court “has consistently indicated ... is that which reveals the subjective knowledge or thought processes of the subject.” Commonwealth v. Brennan, supra, 386 Mass, at 777.

1995Id. at 599 . 13 In Commonwealth v. Brennan, 386 Mass. 772 (1982), the Supreme Judicial Court, considering the Fifth Amendment privilege, held that field sobriety tests do not involve testimonial or communicative evidence, which, the Court noted, the United States Supreme Court “has consistently indicated ... is that which reveals the subjective knowledge or thought processes of the subject.” Commonwealth v. Brennan, supra, 386 Mass, at 777.

2023See Pinney, 97 Mass. App. Ct. at 397, quoting New York v. Quarles, 467 U.S. 649, 657 (1984) ("The United States Supreme Court has stated that, in some circumstances, 'the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self- incrimination'").

2010The Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Id. at 657 .

2003We have been presented with, and know of, no authority, decisional or statutory, to support the notion that a validly asserted claim of the Fifth Amendment privilege is forever binding and cannot be subsequently waived. 1 Although the complainant’s reliance on her Fifth Amendment privilege during her deposition made her unavailable in that proceeding, Commonwealth v. Hesketh, 386 Mass. 153 , 158 n.4 (1982), there is nothing in G.

2003We have been presented with, and know of, no authority, decisional or statutory, to support the notion that a validly asserted claim of the Fifth Amendment privilege is forever binding and cannot be subsequently waived. 1 Although the complainant’s reliance on her Fifth Amendment privilege during her deposition made her unavailable in that proceeding, Commonwealth v. Hesketh, 386 Mass. 153 , 158 n.4 (1982), there is nothing in G.

2009Bellis v. United States, 417 U.S. 85, 89-91 (1974).

1980Cf. Bellis v. United States, 417 U.S. 85 (1974) (no Fifth Amendment privilege available to person holding records of dissolved three-person partnership); United States v. White, 322 U.S. 694 (1944) (same for assistant supervisor subpoenaed by grand jury to produce union records); Dreier v. United States, 221 U.S. 394 (1911) (same for subpoena issued to officer of corporation demanding production of corporate records in his custody). 3 Of course these Amendments bear on the States through the Fourteenth Amendment.

2015Tewolde then said he would testify. 12 *432 The motion judge, citing Pixley v. Commonwealth, 453 Mass. 827, 832-833 (2009), and Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 627 (2010), concluded that Tewolde’s testimony before the grand jury must be suppressed because when the prosecutor sought the court order to compel Tewolde to testify over his objection, “the prosecutor was required to at least give the [first session] judge a sufficient summary of the investigation so that the [first session] judge would be able to make an informed determination on whether [Tewolde] had a valid self-inc

2008We note only that, contrary to the apparent conclusion of the motion judge, a person does not waive his or her Fifth Amendment privilege by speaking with the police, Taylor v. Commonwealth, 369 Mass. 183, 191, 193 (1975) (statements given to police officers in ordinary course of investigation do not result in waiver of privilege as to subsequent in-court, under-oath testimony).

2014Significantly, the Fifth Amendment privilege is not triggered where the government seeks to compel an individual to be the source of real or physical evidence by, for example, furnishing a blood sample, Schmerber v. California, 384 U.S. at 764-765 ; producing a voice exemplar, United States v. Dionisio, 410 U.S. 1, 5-7 (1973); standing in a lineup, United States v. Wade, 388 U.S. 218, 221-223 (1967); providing a handwriting exemplar, Gilbert v. California, 388 U.S. 263, 266-267 (1967); or putting on particular clothing, Holt v. United States, 218 U.S. 245, 252-253 (1910).

2014Significantly, the Fifth Amendment privilege is not triggered where the government seeks to compel an individual to be the source of real or physical evidence by, for example, furnishing a blood sample, Schmerber v. California, 384 U.S. at 764-765 ; producing a voice exemplar, United States v. Dionisio, 410 U.S. 1, 5-7 (1973); standing in a lineup, United States v. Wade, 388 U.S. 218, 221-223 (1967); providing a handwriting exemplar, Gilbert v. California, 388 U.S. 263, 266-267 (1967); or putting on particular clothing, Holt v. United States, 218 U.S. 245, 252-253 (1910).

2014While the United States Supreme Court has indicated that full Miranda warnings are not required for grand jury witnesses, United States v. Mandujano, 425 U.S. 564, 580-581 (1976), it has never determined “whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses.” United States v. Pacheco-Ortiz, 889 F.2d 301, 307 (1st Cir. 1989), quoting Washington, 431 U.S. at 186 .

1997“Under Miranda , a person in police custody has, of course, an absolute right to decline to answer any question, incriminating or innocuous, . .. whereas a grand jury witness, on the contrary, has an absolute duty to answer all questions, subject only to a valid Fifth Amendment claim.” Mandujano, 425 U.S. at 580-81 , 96 S.Ct. at 1778 (citation omitted).

2012The plurality opinion in McKune v. Lile, 536 U.S. 24, 37 (2002) (Mc-Kune), quoting Sandin v. Conner, 515 U.S. 472, 484 (1995), concluded that incriminating statements by a prisoner are not “compelled” where the penalties for refusal to self-incriminate do not constitute “atypical and significant hardships on [inmates] in relation to the ordinary incidents of prison life.” Justice O’Connor in her concurring opinion did not agree that the standard for compulsion is the same as the due process standard established in Sandin v. Conner, supra, and “[found] the plurality’s failure to set forth a com

2012The plurality opinion in McKune v. Lile, 536 U.S. 24, 37 (2002) (Mc-Kune), quoting Sandin v. Conner, 515 U.S. 472, 484 (1995), concluded that incriminating statements by a prisoner are not “compelled” where the penalties for refusal to self-incriminate do not constitute “atypical and significant hardships on [inmates] in relation to the ordinary incidents of prison life.” Justice O’Connor in her concurring opinion did not agree that the standard for compulsion is the same as the due process standard established in Sandin v. Conner, supra, and “[found] the plurality’s failure to set forth a com

2012See Minnesota v. Murphy, supra at 434 , quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) (surveying cases in which Court found compulsion where State sought to induce individual “to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids’ ”).

2012See Minnesota v. Murphy, supra at 434 , quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) (surveying cases in which Court found compulsion where State sought to induce individual “to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids’ ”).

2011Dept. of Revenue v. B.P., 412 Mass. 1015, 1016 (1992).

2011Dept. of Revenue v. B.P., 412 Mass. 1015, 1016 (1992).

2019Under such circumstances, an accused's Fifth Amendment privilege is not implicated, as "[t]he question is not of testimony but of surrender." Id . at 411 , 96 S.Ct. 1569 .

2019Under such circumstances, an accused's Fifth Amendment privilege is not implicated, as "[t]he question is not of testimony but of surrender." Id . at 411 , 96 S.Ct. 1569 .

2014Significantly, the Fifth Amendment privilege is not triggered where the government seeks to compel an individual to be the source of real or physical evidence by, for example, furnishing a blood sample, Schmerber v. California, 384 U.S. at 764-765 ; producing a voice exemplar, United States v. Dionisio, 410 U.S. 1, 5-7 (1973); standing in a lineup, United States v. Wade, 388 U.S. 218, 221-223 (1967); providing a handwriting exemplar, Gilbert v. California, 388 U.S. 263, 266-267 (1967); or putting on particular clothing, Holt v. United States, 218 U.S. 245, 252-253 (1910).

2014Significantly, the Fifth Amendment privilege is not triggered where the government seeks to compel an individual to be the source of real or physical evidence by, for example, furnishing a blood sample, Schmerber v. California, 384 U.S. at 764-765 ; producing a voice exemplar, United States v. Dionisio, 410 U.S. 1, 5-7 (1973); standing in a lineup, United States v. Wade, 388 U.S. 218, 221-223 (1967); providing a handwriting exemplar, Gilbert v. California, 388 U.S. 263, 266-267 (1967); or putting on particular clothing, Holt v. United States, 218 U.S. 245, 252-253 (1910).

2014Although the Fifth Amendment privilege typically applies to oral or written statements that are deemed to be testimonial, United States v. White, 322 U.S. 694, 698 (1944), the act of producing evidence demanded by the government may have “communicative aspects” that would render the Fifth Amendment applicable.

2014Although the Fifth Amendment privilege typically applies to oral or written statements that are deemed to be testimonial, United States v. White, 322 U.S. 694, 698 (1944), the act of producing evidence demanded by the government may have “communicative aspects” that would render the Fifth Amendment applicable.

2009See Braswell v. United States, 487 U.S. 99, 110 (1988).

2009Any claim of Fifth Amendment privilege asserted by the agent would be tantamount to a claim of privilege by the corporation — which of course possesses no such privilege.” Id. at 109-110 (citation omitted).

1985A litigant may not be subjected to a penalty such as “the imposition of any sanction which makes assertion of the Fifth Amendment privilege ‘costly.’” Spevack v. Klein, 385 U.S. 511, 515 (1967).

1985A litigant may not be subjected to a penalty such as “the imposition of any sanction which makes assertion of the Fifth Amendment privilege ‘costly.’” Spevack v. Klein, 385 U.S. 511, 515 (1967).

2022See also Grosso v. United States, 390 U.S. 62, 66-68 (1968) (same, as to excise tax on illegal wagering activities); Haynes v. United States, 390 U.S. 85, 86-87, 97-99 (1968) (prosecution for knowingly possessing firearm that had not been registered as required by other applicable laws should have been dismissed because registration requirement violated defendant's Fifth Amendment privilege against self-incrimination).

1988A refusal to file a statutorily required document has been held to implicate the Fifth Amendment only in a limited line of cases involving mandatory filings with government agencies where the focus of the requirement was against criminal activity.” Walden v. Board of Registration in Nursing, 395 Mass. 263, 266 (1985), collecting the following cases: “Leary v. United States, 395 U.S. 6 (1969) (marihuana registration and tax); Haynes v. United States, 390 U.S. 85 (1968)(requirement that owners of illegal firearms must register and pay tax); Grosso v. United States, 390 U.S. 62 (1968) (requiremen

2022See also Grosso v. United States, 390 U.S. 62, 66-68 (1968) (same, as to excise tax on illegal wagering activities); Haynes v. United States, 390 U.S. 85, 86-87, 97-99 (1968) (prosecution for knowingly possessing firearm that had not been registered as required by other applicable laws should have been dismissed because registration requirement violated defendant's Fifth Amendment privilege against self-incrimination).

1988A refusal to file a statutorily required document has been held to implicate the Fifth Amendment only in a limited line of cases involving mandatory filings with government agencies where the focus of the requirement was against criminal activity.” Walden v. Board of Registration in Nursing, 395 Mass. 263, 266 (1985), collecting the following cases: “Leary v. United States, 395 U.S. 6 (1969) (marihuana registration and tax); Haynes v. United States, 390 U.S. 85 (1968)(requirement that owners of illegal firearms must register and pay tax); Grosso v. United States, 390 U.S. 62 (1968) (requiremen

1995Only then is a person compelled to be a ‘witness’ against himself.” Pennsylvania v. Muniz, supra, 496 U.S. at 589 , quoting Doe v. United States, 487 U.S. 201, 210 (1988). 9 In Pennsylvania v. Muniz, supra, the Supreme Court held that compelling an arrested drunk-driving suspect to state the date of his sixth birthday constituted a “testimonial” response, and that, because the suspect had not been read his Miranda rights, admitting the statement as evidence at trial violated the suspect’s Fifth Amendment privilege against self-incrimination.

1995Only then is a person compelled to be a ‘witness’ against himself.” Pennsylvania v. Muniz, supra, 496 U.S. at 589 , quoting Doe v. United States, 487 U.S. 201, 210 (1988). 9 In Pennsylvania v. Muniz, supra, the Supreme Court held that compelling an arrested drunk-driving suspect to state the date of his sixth birthday constituted a “testimonial” response, and that, because the suspect had not been read his Miranda rights, admitting the statement as evidence at trial violated the suspect’s Fifth Amendment privilege against self-incrimination.

2013See Commonwealth v. Gagnon, 408 Mass. 185, 198 (1990), S.C., 430 Mass. 348 (1999) (evidence that witness exercises his Fifth Amendment right “producéis] no relevant evidence, while inviting the jury to engage in unwarranted and impermissible speculation”); Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 57-58 (2009) (permitting witness who refuses to testify to assert Fifth Amendment privilege before jury “presents the real possibility that jurors will speculate that the witness is guilty of the crime charged [or another crime] and that the defendant is not”).

2011Any such attack on the credibility of a witness who invokes his Fifth Amendment privilege could impermissibly bring the exercise of that right to the attention of the jury, see Gagnon, supra, or otherwise “risk . . . confusing jurors by diverting their attention to wholly collateral matters involving persons not on trial.” Commonwealth v. Rosa, 422 Mass. 18, 22 (1996).

2012See Minnesota v. Murphy, supra at 434 , quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) (surveying cases in which Court found compulsion where State sought to induce individual “to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids’ ”).

2012See Minnesota v. Murphy, supra at 434 , quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) (surveying cases in which Court found compulsion where State sought to induce individual “to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids’ ”).