Fifth Amendment privilege in Virginia

2026His probation instructions “certainly contained no suggestion that his probation was conditional [up]on [him agreeing to] waiv[e] his Fifth Amendment privilege with respect to further criminal prosecution.” Thomas, 82 Va. App. at 115 (quoting Minnesota v. Murphy, 465 U.S. 420, 437 (1984)).

2024But “[i]n each of the so-called ‘penalty’ cases, the state not only compelled an individual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’” Murphy, 465 U.S. at 434 (quoting Cunningham, 431 U.S. at 806 ).

2024In Stone’s argument, however, he fails to address that “[t]he law is firmly established in Virginia that a declarant is unavailable [as a witness] if the declarant invokes the Fifth Amendment privilege to remain silent.” Palmer v. Commonwealth, 71 Va. App. 225 , 235 (2019) (quoting Boney v. Commonwealth, 16 Va. App. 638, 643 (1993)).2 There is no question that Carter invoked her Fifth Amendment privilege when asked questions relating to the conspiracy charges.

2024In Stone’s argument, however, he fails to address that “[t]he law is firmly established in Virginia that a declarant is unavailable [as a witness] if the declarant invokes the Fifth Amendment privilege to remain silent.” Palmer v. Commonwealth, 71 Va. App. 225 , 235 (2019) (quoting Boney v. Commonwealth, 16 Va. App. 638, 643 (1993)).2 There is no question that Carter invoked her Fifth Amendment privilege when asked questions relating to the conspiracy charges.

2023The 9 To the extent that the appellant alleges that his brother’s recent death impacted his ability to validly waive the rights afforded by Miranda, “the Fifth Amendment privilege is not concerned with ‘moral and psychological pressures to confess emanating from sources other than official coercion.’” Kauffmann v. Commonwealth, 8 Va. App. 400, 405-06 (1989) (quoting Colorado v. Connelly, 479 U.S. 157, 170 (1986)).

2023The 9 To the extent that the appellant alleges that his brother’s recent death impacted his ability to validly waive the rights afforded by Miranda, “the Fifth Amendment privilege is not concerned with ‘moral and psychological pressures to confess emanating from sources other than official coercion.’” Kauffmann v. Commonwealth, 8 Va. App. 400, 405-06 (1989) (quoting Colorado v. Connelly, 479 U.S. 157, 170 (1986)).

2022See e.g., Boney v. Commonwealth, 16 Va. App. 638, 643 (1993) (“The law is firmly established that a declarant is unavailable if the declarant invokes the Fifth Amendment privilege to remain silent.” (citing Newberry v. Commonwealth, 191 Va. 445, 462 (1950))).

2022See e.g., Boney v. Commonwealth, 16 Va. App. 638, 643 (1993) (“The law is firmly established that a declarant is unavailable if the declarant invokes the Fifth Amendment privilege to remain silent.” (citing Newberry v. Commonwealth, 191 Va. 445, 462 (1950))).

2024“Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’” Id. (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)). -8- Even if we believed that Contreras confessed so that his family could go home, that confession would stem from “psychological pressures . . . emanating from sources other than official coercion.” Id.

2024“Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’” Id. (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)). -8- Even if we believed that Contreras confessed so that his family could go home, that confession would stem from “psychological pressures . . . emanating from sources other than official coercion.” Id.

2008One reason why I believe there is a compulsion requirement for statutory immunity is the relationship of immunity statutes generally to the Fifth Amendment privilege against compulsory self-incrimination. “[Sjtate and federal immunity statutes, represent legislative efforts to ‘seek a rational accommodation between the imperatives of the [Fifth Amendment] privilege and the legitimate demands of government to compel citizens to testify.’ ” Gosling v. Commonwealth, 14 Va.App. 158, 163 , 415 S.E.2d 870, 872 (1992) (quoting Kastigar v. United States, 406 U.S. 441, 446 , 92 S.Ct. 1653, 1657-58 , 32

2008One reason why I believe there is a compulsion requirement for statutory immunity is the relationship of immunity statutes generally to the Fifth Amendment privilege against compulsory self-incrimination. “[Sjtate and federal immunity statutes, represent legislative efforts to ‘seek a rational accommodation between the imperatives of the [Fifth Amendment] privilege and the legitimate demands of government to compel citizens to testify.’ ” Gosling v. Commonwealth, 14 Va.App. 158, 163 , 415 S.E.2d 870, 872 (1992) (quoting Kastigar v. United States, 406 U.S. 441, 446 , 92 S.Ct. 1653, 1657-58 , 32

2023ANALYSIS A. Garrity Issue First, Griffin argues that the trial court erred “by not dismissing the charges against Appellant, or alternatively, by allowing certain evidence and testimony from Sergeant John East, who took compelled statements from Appellant during the related administrative proceeding prior to personally conducting the criminal investigation, in violation of Garrity v. New Jersey, 385 U.S. 493 (1967) and Appellant’s Due Process rights.” The Fifth Amendment’s privilege against self-incrimination, which applies to the States through the Fourteenth Amendment, states that no person

2016A. Fifth Amendment The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” Although inapplicable to the states at the time it was originally enacted, the Fifth Amendment now “applies to the States by virtue of the Fourteenth Amendment.” Maryland v. Shatzer, 559 U.S. 98, 103 , 130 S.Ct. 1213, 1219 , 175 L.Ed.2d 1045 (2010) (citing Malloy v. Hogan, 378 U.S. 1, 6 , 84 S.Ct. 1489, 1493 , 12 L.Ed.2d 653 (1964)). 6 Violations of the Fifth Amendment privilege against

2024We explained nearly two decades ago that decisions of the United States Supreme Court “‘have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege,’ for, in doing so, the government would be imposing a penalty upon an individual who ‘elects to - 43 - exercise his Fifth Amendment right.’” Venable v. Commonwealth, 48 Va. App. 380, 387 (2006) (first quoting Murphy, 465 U.S. at 438 ; and then quoting Cunningham, 431 U.S. at 805 ).

2024We explained nearly two decades ago that decisions of the United States Supreme Court “‘have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege,’ for, in doing so, the government would be imposing a penalty upon an individual who ‘elects to - 43 - exercise his Fifth Amendment right.’” Venable v. Commonwealth, 48 Va. App. 380, 387 (2006) (first quoting Murphy, 465 U.S. at 438 ; and then quoting Cunningham, 431 U.S. at 805 ).

2025This case centers on the Miranda warning that the accused has the right to the presence of an attorney, a right that Miranda said was “indispensable to the protection of the Fifth Amendment privilege.” Id. at 469 .

2025This case centers on the Miranda warning that the accused has the right to the presence of an attorney, a right that Miranda said was “indispensable to the protection of the Fifth Amendment privilege.” Id. at 469 .

2020“Like the Fifth Amendment bar of former jeopardy, Code § 19.2-294 prevents the Commonwealth from ‘subjecting an accused to the hazards of vexatious, multiple prosecutions.’” Phillips v. Commonwealth, 257 Va. 548, 551 (1999) (quoting Hall v. Commonwealth, 14 Va. App. 892, 899 (1992) (en banc)).

2004“Like the Fifth Amendment bar of former jeopardy, Code § 19.2-294 prevents the Commonwealth from ‘subjecting an accused to the hazards of vexatious, multiple prosecutions.’ ” Phillips, 257 Va. at 551-52 , 514 S.E.2d at 342 (quoting Hall, 14 Va.App. at 899 , 421 S.E.2d at 460 ).

2020“Like the Fifth Amendment bar of former jeopardy, Code § 19.2-294 prevents the Commonwealth from ‘subjecting an accused to the hazards of vexatious, multiple prosecutions.’” Phillips v. Commonwealth, 257 Va. 548, 551 (1999) (quoting Hall v. Commonwealth, 14 Va. App. 892, 899 (1992) (en banc)).

2012Code § 19.2-294 provides, in relevant part: If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others. “‘Like the Fifth Amendment bar of former jeopardy, Code § 19.2-294 prevents the Commonwealth from subjecting an accused to the hazards of vexatious, multiple prosecutions.’” Londono v. Commonwealth, 40 Va. App. 377, 393 , 579 S.E.2d 641, 648 (2003) (quoting Phillips v. Commonwealth, 2

2024Nor is there any evidence that Thomas confessed “because he feared that his probation would be revoked if he remained silent.” Id. “‘The inquiry is simply whether the warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.”’” Seibert, 542 U.S. at 611 (plurality) (quoting Eagan, 492 U.S. at 203 ).

2024Nor is there any evidence that Thomas confessed “because he feared that his probation would be revoked if he remained silent.” Id. “‘The inquiry is simply whether the warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.”’” Seibert, 542 U.S. at 611 (plurality) (quoting Eagan, 492 U.S. at 203 ).

2024In one of the majority’s cases, for instance, the court found that the Miranda waiver signed by the juvenile defendant was not voluntary because the detective, before reading the Miranda warnings, suggested that if the defendant “remained silent, he would face fabricated charges for things that he did not do.” In re S.W., 124 A.3d 89, 103 (D.C. 2015).

2024In one of the majority’s cases, for instance, the court found that the Miranda waiver signed by the juvenile defendant was not voluntary because the detective, before reading the Miranda warnings, suggested that if the defendant “remained silent, he would face fabricated charges for things that he did not do.” In re S.W., 124 A.3d 89, 103 (D.C. 2015).

2024And “Linville had no reasonable basis for believing that he risked revocation of his supervised release if he invoked the Fifth Amendment.” Id. “[A]s Murphy emphasized, ‘[Supreme Court] decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.’” Id. at 898 (second alteration in original) (quoting Murphy, 465 U.S. at 438 ).

2024And “Linville had no reasonable basis for believing that he risked revocation of his supervised release if he invoked the Fifth Amendment.” Id. “[A]s Murphy emphasized, ‘[Supreme Court] decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.’” Id. at 898 (second alteration in original) (quoting Murphy, 465 U.S. at 438 ).

2024Miranda, 384 U.S. at 467-68 ; Murphy, 465 U.S. at 429-30 ; United States v. Frierson, 945 F.2d 650, 660 (3d Cir. 1991) (explaining that in custodial interrogation settings, absent a valid Miranda waiver, “statements are deemed ‘compelled’ and are inadmissible although the privilege was never claimed” (emphasis added)).

2024Miranda, 384 U.S. at 467-68 ; Murphy, 465 U.S. at 429-30 ; United States v. Frierson, 945 F.2d 650, 660 (3d Cir. 1991) (explaining that in custodial interrogation settings, absent a valid Miranda waiver, “statements are deemed ‘compelled’ and are inadmissible although the privilege was never claimed” (emphasis added)).

2024In the context of “a Fifth Amendment self-incrimination challenge, ‘[v]oluntariness is a question of law, subject to independent appellate review.’” Secret v. Commonwealth, 296 Va. 204 , 225 (2018) (alteration in original) (quoting Avent v. Commonwealth, 279 Va. 175, 195 (2010)).

2024In the context of “a Fifth Amendment self-incrimination challenge, ‘[v]oluntariness is a question of law, subject to independent appellate review.’” Secret v. Commonwealth, 296 Va. 204 , 225 (2018) (alteration in original) (quoting Avent v. Commonwealth, 279 Va. 175, 195 (2010)).

2000Still later, United States v. Doe, 465 U.S. 605, 606 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 (1984), “presented] the issue whether, and to what extent, the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship.” The Court ruled that the contents of business records are not privileged under the Fifth Amendment where the accused voluntarily prepared the documents.

2000Still later, United States v. Doe, 465 U.S. 605, 606 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 (1984), “presented] the issue whether, and to what extent, the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship.” The Court ruled that the contents of business records are not privileged under the Fifth Amendment where the accused voluntarily prepared the documents.

2024But “[i]n each of the so-called ‘penalty’ cases, the state not only compelled an individual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’” Murphy, 465 U.S. at 434 (quoting Cunningham, 431 U.S. at 806 ).

2024But “[i]n each of the so-called ‘penalty’ cases, the state not only compelled an individual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’” Murphy, 465 U.S. at 434 (quoting Cunningham, 431 U.S. at 806 ).

2008See Kastigar v. United States, 406 U.S. 441, 444 , 92 S.Ct. 1653, 1656 , 32 L.Ed.2d 212 (1972) (holding that the most important exemption from testimonial duty is “the Fifth Amendment privilege against compulsory self-incrimination”).

2008See Kastigar v. United States, 406 U.S. 441, 444 , 92 S.Ct. 1653, 1656 , 32 L.Ed.2d 212 (1972) (holding that the most important exemption from testimonial duty is “the Fifth Amendment privilege against compulsory self-incrimination”).

2000Fisher, 425 U.S. at 401 , 96 S.Ct. at 1576 (citations and footnote omitted); see also id. at 401 n. 6, 96 S.Ct. at 1576 n. 6 (citing Couch, 409 U.S. 322 , 93 S.Ct. 611 , which involved a subpoena to an accountant for tax records of the accused and in which the Court “differentiated between the things protected by the Fourth and Fifth Amendments,” and noting that “ ‘there exist[ed] no legitimate expectation of privacy [the Fourth Amendment claim] and no semblance of governmental compulsion against the person of the accused [the Fifth Amendment claim]’ ”).

2000Fisher, 425 U.S. at 401 , 96 S.Ct. at 1576 (citations and footnote omitted); see also id. at 401 n. 6, 96 S.Ct. at 1576 n. 6 (citing Couch, 409 U.S. 322 , 93 S.Ct. 611 , which involved a subpoena to an accountant for tax records of the accused and in which the Court “differentiated between the things protected by the Fourth and Fifth Amendments,” and noting that “ ‘there exist[ed] no legitimate expectation of privacy [the Fourth Amendment claim] and no semblance of governmental compulsion against the person of the accused [the Fifth Amendment claim]’ ”).

2024“Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’” Id. (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)). -8- Even if we believed that Contreras confessed so that his family could go home, that confession would stem from “psychological pressures . . . emanating from sources other than official coercion.” Id.

2024“Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’” Id. (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)). -8- Even if we believed that Contreras confessed so that his family could go home, that confession would stem from “psychological pressures . . . emanating from sources other than official coercion.” Id.

2014In addition, the Commonwealth must “prove by a preponderance of the evidence . . . that the accused knowingly, intelligently, and voluntarily waived his [constitutional] rights.” Rodriguez v. Commonwealth, 40 Va. App. 144, 155 (2003).

2014In addition, the Commonwealth must “prove by a preponderance of the evidence . . . that the accused knowingly, intelligently, and voluntarily waived his [constitutional] rights.” Rodriguez v. Commonwealth, 40 Va. App. 144, 155 (2003).

2023The Fifth Amendment public safety exception is a narrow exception to the Miranda rule that applies when 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.” Anderson v. Commonwealth, 279 Va. 85 , 91 (2010) (quoting New York v. Quarles, 467 U.S. 649, 657 (1984)).

2010The Court recognized 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 7 against self-incrimination.” Id. at 657 .

2016Because "[t]he privilege against compelled testimony under Article 1, § 8 of the Virginia Constitution is no broader in its application than its counterpart under the federal Constitution,” Farmer v. Commonwealth, 12 Va.App. 337, 340 , 404 S.E.2d 371, 372 (1991), we will, for the sake of convenience, refer to his claim as a Fifth Amendment claim. 7 .

2016Because "[t]he privilege against compelled testimony under Article 1, § 8 of the Virginia Constitution is no broader in its application than its counterpart under the federal Constitution,” Farmer v. Commonwealth, 12 Va.App. 337, 340 , 404 S.E.2d 371, 372 (1991), we will, for the sake of convenience, refer to his claim as a Fifth Amendment claim. 7 .

2011As the Supreme Court has observed, if a suspect invokes his right to have counsel present, thereby indicating his "belie[f] that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of 'inherently compelling pressures’ and not the purely voluntary choice of the suspect." Zektaw, 278 Va. at 136 , 677 S.E.2d at 53 (quoting Arizona v. Roberson, 486 U.S. 675, 681 , 108 S.Ct. 2093, 2097-98 , 100 L.Ed.2d 704 (1988)); see also

1992The advantage in having and applying such a rule “benefits the accused and the State alike [and] has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence, even though the confession might be voluntary under traditional Fifth Amendment analysis.” Fare v. Michael, 442 U.S. at 719 ; see Arizona v. Roberson, 108 S. Ct. at 2098 .

2009Rivera-Padilla cannot rely on the “penalty” exception to claim she was compelled to give statements in violation of the Fifth Amendment because she was never told she must forgo her Fifth Amendment privilege to seek the benefits. *312 She was required to provide information regarding her income in order to seek the continuation of the benefits but that requirement did not convert her voluntary statements into compelled ones since she was not refrained from claiming her privilege. 7 See Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 858 , 104 S.Ct. 3348, 335

2009Rivera-Padilla cannot rely on the “penalty” exception to claim she was compelled to give statements in violation of the Fifth Amendment because she was never told she must forgo her Fifth Amendment privilege to seek the benefits. *312 She was required to provide information regarding her income in order to seek the continuation of the benefits but that requirement did not convert her voluntary statements into compelled ones since she was not refrained from claiming her privilege. 7 See Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 858 , 104 S.Ct. 3348, 335

2006The principle is long standing that a person who is protected by the Fifth Amendment privilege may “refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.” Lefkowitz, 414 U.S. at 78 , 94 S.Ct. at 323 (citing Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972)).

2006The principle is long standing that a person who is protected by the Fifth Amendment privilege may “refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.” Lefkowitz, 414 U.S. at 78 , 94 S.Ct. at 323 (citing Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972)).