Fifth Amendment privilege in Minnesota

2016Miranda v. Arizona provides procedural safeguards to protect an individual’s Fifth Amendment privilege against self-incrimination. 384 U.S. 436, 478-79 , 86 S. Ct. 1602, 1630 (1966).

2016Miranda v. Arizona provides procedural safeguards to protect an individual’s Fifth Amendment privilege against self-incrimination. 384 U.S. 436, 478-79 , 86 S. Ct. 1602, 1630 (1966).

2017See Minn. Stat. § 243.166 , subd. 5 (providing criminal penalty for failure to follow registration requirements); cf. Johnson v. Fabian, 735 N.W.2d 295, 309 (Minn. 2007) (holding that the extension of inmates’ incarceration time for refusal to admit to sexual offenses in sex-offender treatment violated Fifth Amendment privilege against self-incrimination).

2016The supreme court 6 reversed, reasoning that the commissioner violated Johnson’s Fifth Amendment right against self-incrimination because his direct appeal was pending when he refused to participate in sex-offender treatment and because the extension of his imprisonment “r[o]se to the level of compulsion for purposes of [his] Fifth Amendment privilege against self- incrimination.” Id. at 309 .

2016The Fifth Amendment privilege “is properly invoked when the testimony or papers sought would tend to incriminate the witness.” Minn. State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 311 Minn. 276, 278 , 248 N.W.2d 733, 737 (1976).

2016The Fifth Amendment privilege “is properly invoked when the testimony or papers sought would tend to incriminate the witness.” Minn. State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 311 Minn. 276, 278 , 248 N.W.2d 733, 737 (1976).

2006United States v. Duchi, 944 F.2d 391, 394 (8th Cir.1991); cf. Taylor v. Lieffort, 568 N.W.2d 456, 458 (Minn.App.1997) (holding there was no Fifth Amendment privilege when inmate had exhausted appeal of conviction).

2006This court in Johnson ruled that the inmate’s Fifth Amendment privilege still applied, citing United States v. Duchi, 944 F.2d 391, 394 (8th Cir.1991), in a supporting footnote. 711 N.W.2d at 542 n. 1; see also Martin v. Flanagan, 259 Conn. 487 , 789 A.2d 979 , 984-85 n. 4 (2002) (listing state and federal cases in support of proposition that the privilege may be invoked by a witness “whose conviction has not been finalized on direct appeal”).

2006United States v. Duchi, 944 F.2d 391, 394 (8th Cir.1991); cf. Taylor v. Lieffort, 568 N.W.2d 456, 458 (Minn.App.1997) (holding there was no Fifth Amendment privilege when inmate had exhausted appeal of conviction).

1999The privilege against compelled self-incrimination “continues until the time for appeal has expired or until the conviction has been affirmed on appeal.” United States v. Duchi, 944 F.2d 391, 394 (8th Cir.1991); see also Taylor, 568 N.W.2d at 458 (implying the Fifth Amendment privilege continues until the direct appeal of the conviction has concluded.) Whether a convicted probationer’s right against self-incrimination is violated when his probation is revoked because he refused to admit the facts underlying the conviction he is appealing is an issue of first impression in Minnesota.

2017“When the government does nothing to compel a person who is not in custody to speak or to remain silent ... the voluntary decision to do one or the other raises no Fifth Amendment issue.” State v. Borg, 806 N.W.2d 535, 543 (Minn. 2011) (citation omitted).

2016More recently, in State v. Borg, 806 N.W.2d 535, 543 (Minn. 2011), the Minnesota Supreme Court ruled that, during its case-in-chief, the state may introduce a defendant’s failure to respond to a prearrest, pre-Miranda letter from police requesting an interview. 5 When the government does nothing to compel a person who is not in custody to speak or to remain silent . . . the voluntary decision to do one or the other raises no Fifth Amendment issue.

2007We noted that “[cjompulsion is the touchstone of the Fifth Amendment,” and concluded that Morrow’s choice between treatment and confinement for a larger portion of his sentence did not “rise to the level of compulsion necessary in order to constitute a Fifth Amendment violation.” Id. at 792 (internal quotations omitted).

2007We noted that “[cjompulsion is the touchstone of the Fifth Amendment,” and concluded that Morrow’s choice between treatment and confinement for a larger portion of his sentence did not “rise to the level of compulsion necessary in order to constitute a Fifth Amendment violation.” Id. at 792 (internal quotations omitted).

2016Eliciting C.B.’s testimony McGinnis argues that the prosecutor committed misconduct when he elicited testimony from C.B., knowing that he would assert his Fifth-Amendment privilege against self-incrimination. “[When] the prosecution calls a witness for the purpose of prejudicing the defendant in the minds of the jury, knowing that the witness will claim immunity, reversible error results, regardless of actual prejudice.” State v. Morales, 788 N.W.2d 737, 753 (Minn. 2010) (emphasis added) (quotation omitted).

2016Moreover, the prosecutor said: “[M]y view is . . . he has no Fifth Amendment privilege.” 13 See id. at 754 (reasoning that because the state believed that the privilege was inapplicable, the state may have had a legitimate reason to call the witness).

2018See id. at 301-02 , 100 S.Ct. 1682 ; State v. Greenleaf , 591 N.W.2d 488 , 497 (Minn. 1999) (holding that questions that are unlikely to elicit incriminating responses do not require Miranda warnings).

2018See id. at 301-02 , 100 S.Ct. 1682 ; State v. Greenleaf , 591 N.W.2d 488 , 497 (Minn. 1999) (holding that questions that are unlikely to elicit incriminating responses do not require Miranda warnings).

2016See, e.g., State v. *713 Ford, 539 N.W.2d 214, 227 (Minn. 1995) (declaring witness unavailability may be established by a witness invoking Fifth Amendment protection against self-incrimination); State v. Durante, 406 N.W.2d 80, 84 (Minn. App. 1987) (“Witnesses who invoke their Fifth Amendment privilege are unavailable for purposes of the confrontation clause.”); State v. Iverson, 396 N.W.2d 599, 606 (Minn. App. 1986) (declaring witness unavailable because witness refused to testify), review denied (Minn. Jan. 16, 1987); see also Douglas v. Alabama, 380 U.S. 415, 419-20 , 85 S.Ct. 1074, 1077 ,

2016See, e.g., State v. *713 Ford, 539 N.W.2d 214, 227 (Minn. 1995) (declaring witness unavailability may be established by a witness invoking Fifth Amendment protection against self-incrimination); State v. Durante, 406 N.W.2d 80, 84 (Minn. App. 1987) (“Witnesses who invoke their Fifth Amendment privilege are unavailable for purposes of the confrontation clause.”); State v. Iverson, 396 N.W.2d 599, 606 (Minn. App. 1986) (declaring witness unavailable because witness refused to testify), review denied (Minn. Jan. 16, 1987); see also Douglas v. Alabama, 380 U.S. 415, 419-20 , 85 S.Ct. 1074, 1077 ,

2025This interpretation of Moose is supported by our decision in State v. Graham, in which we cited Moose for the principle that “[a] defendant’s constitutional right to present a defense . . . does not permit a defendant to compel a prospective witness to waive her Fifth Amendment privilege against self-incrimination.” 764 N.W.2d 340, 349 (Minn. 2009) (citing Moose, 266 N.W.2d at 525 ).

2014State v. Moose, 266 N.W.2d 521, 525 (Minn. 1978).

2008In Johnson v. Fabian, this court held that while an inmate’s conviction is on appeal, he has a Fifth Amendment privilege that protects him from being sanctioned for refusal to discuss the offense of conviction in a prison treatment program. 711 N.W.2d 540, 542, 545 (Minn.App.2006), aff'd, 735 N.W.2d 295 (Minn.2007).

2008In Johnson v. Fabian, this court held that while an inmate’s conviction is on appeal, he has a Fifth Amendment privilege that protects him from being sanctioned for refusal to discuss the offense of conviction in a prison treatment program. 711 N.W.2d 540, 542, 545 (Minn.App.2006), aff'd, 735 N.W.2d 295 (Minn.2007).

2025See Herbert, 767 S.E.2d at 498–99 (Loughry, J., concurring) (explaining the many pitfalls of an “express foreclosure of any discretion to trial courts” and noting, for example, that such a rule would 26 “grant[] prosecutors and defense counsel carte blanche to badger witnesses by repeatedly asking questions designed to elicit the invocation of the Fifth Amendment privilege”).

2025See Herbert, 767 S.E.2d at 498–99 (Loughry, J., concurring) (explaining the many pitfalls of an “express foreclosure of any discretion to trial courts” and noting, for example, that such a rule would 26 “grant[] prosecutors and defense counsel carte blanche to badger witnesses by repeatedly asking questions designed to elicit the invocation of the Fifth Amendment privilege”).

2024Id.; State v. Fox, 868 N.W.2d 206, 213 (Minn. 2015).

2024Id.; State v. Fox, 868 N.W.2d 206, 213 (Minn. 2015).

2016See, e.g., State v. Ford, 539 N.W.2d 214, 227 (Minn. 1995) (declaring witness unavailability may be established by a witness invoking Fifth Amendment protection against self-incrimination); State v. Durante, 406 N.W.2d 80, 84 (Minn. App. 1987) (“Witnesses who invoke their Fifth Amendment privilege are unavailable for purposes of the confrontation clause.”); State v. Iverson, 396 N.W.2d 599 , 6 606 (Minn. App. 1986) (declaring witness unavailable because witness refused to testify), review denied (Minn. Jan. 16, 1987); see also Douglas v. Alabama, 380 U.S. 415 , 419- 20, 85 S. Ct. 1074, 1077 (1

2016See, e.g., State v. *713 Ford, 539 N.W.2d 214, 227 (Minn. 1995) (declaring witness unavailability may be established by a witness invoking Fifth Amendment protection against self-incrimination); State v. Durante, 406 N.W.2d 80, 84 (Minn. App. 1987) (“Witnesses who invoke their Fifth Amendment privilege are unavailable for purposes of the confrontation clause.”); State v. Iverson, 396 N.W.2d 599, 606 (Minn. App. 1986) (declaring witness unavailable because witness refused to testify), review denied (Minn. Jan. 16, 1987); see also Douglas v. Alabama, 380 U.S. 415, 419-20 , 85 S.Ct. 1074, 1077 ,

2016See, e.g., State v. Ford, 539 N.W.2d 214, 227 (Minn. 1995) (declaring witness unavailability may be established by a witness invoking Fifth Amendment protection against self-incrimination); State v. Durante, 406 N.W.2d 80, 84 (Minn. App. 1987) (“Witnesses who invoke their Fifth Amendment privilege are unavailable for purposes of the confrontation clause.”); State v. Iverson, 396 N.W.2d 599 , 6 606 (Minn. App. 1986) (declaring witness unavailable because witness refused to testify), review denied (Minn. Jan. 16, 1987); see also Douglas v. Alabama, 380 U.S. 415 , 419- 20, 85 S. Ct. 1074, 1077 (1

2016See, e.g., State v. *713 Ford, 539 N.W.2d 214, 227 (Minn. 1995) (declaring witness unavailability may be established by a witness invoking Fifth Amendment protection against self-incrimination); State v. Durante, 406 N.W.2d 80, 84 (Minn. App. 1987) (“Witnesses who invoke their Fifth Amendment privilege are unavailable for purposes of the confrontation clause.”); State v. Iverson, 396 N.W.2d 599, 606 (Minn. App. 1986) (declaring witness unavailable because witness refused to testify), review denied (Minn. Jan. 16, 1987); see also Douglas v. Alabama, 380 U.S. 415, 419-20 , 85 S.Ct. 1074, 1077 ,

2016“Ordinarily, a witness is regarded as ‘subject to cross-examination’ when he is placed on the stand, under oath, and responds willingly to questions.” United States v. Owens, 484 U.S. 554, 561 , 108 S.Ct. 838, 844 , 98 L.Ed.2d 951 (1988).

2016“Ordinarily, a witness is regarded as ‘subject to cross-examination’ when he is placed on the stand, under oath, and responds willingly to questions.” United States v. Owens, 484 U.S. 554, 561 , 108 S.Ct. 838, 844 , 98 L.Ed.2d 951 (1988).

2016Credit Ass’n of Redwood Falls v. Good, 303 Minn. 524, 528 , 228 N.W.2d 574, 577 (1975) (quotation omitted).

2016Credit Ass’n of Redwood Falls v. Good, 303 Minn. 524, 528 , 228 N.W.2d 574, 577 (1975) (quotation omitted).

2007In the so-called “penalty cases,” the Supreme Court has held that the following consequences rise to the level of compulsion for purposes of the Fifth Amendment privilege against self-incrimination: termination of employment, Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation of New York, 392 U.S. 280 , 88 S.Ct. 1917 , 20 L.Ed.2d 1089 (1968); loss of a professional license, Spevack v. Klein, 385 U.S. 511 , 87 S.Ct. 625 , 17 L.Ed.2d 574 (1967); ineligibility to receive government contracts, Lefkowitz v. Turley, 414 U.S. 70 , 94 S.Ct. 316 , 38 L.Ed.2d 274 (1973); and loss of the right to par

2007In the so-called “penalty cases,” the Supreme Court has held that the following consequences rise to the level of compulsion for purposes of the Fifth Amendment privilege against self-incrimination: termination of employment, Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation of New York, 392 U.S. 280 , 88 S.Ct. 1917 , 20 L.Ed.2d 1089 (1968); loss of a professional license, Spevack v. Klein, 385 U.S. 511 , 87 S.Ct. 625 , 17 L.Ed.2d 574 (1967); ineligibility to receive government contracts, Lefkowitz v. Turley, 414 U.S. 70 , 94 S.Ct. 316 , 38 L.Ed.2d 274 (1973); and loss of the right to par

2007Addressing an objective standard, the Court stated that any subjective fear that Murphy’s probation could be revoked for asserting his privilege against self-incrimination would have been objectively unreasonable, because the Court’s “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 438 , 104 S.Ct. 1136 .

2007Addressing an objective standard, the Court stated that any subjective fear that Murphy’s probation could be revoked for asserting his privilege against self-incrimination would have been objectively unreasonable, because the Court’s “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 438 , 104 S.Ct. 1136 .

2018Even if the officers' request for consent to take a DNA sample is reasonably likely to prompt the suspect to provide the sample, providing the physical sample is not an incriminating testimonial communication that triggers the Fifth Amendment privilege against self-incrimination. "[T]he privilege is a bar against compelling 'communications' or 'testimony,' " but making a suspect or accused "the source of 'real or physical evidence' does not violate it." Schmerber v. California , 384 U.S. 757 , 764, 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966).

2018Even if the officers' request for consent to take a DNA sample is reasonably likely to prompt the suspect to provide the sample, providing the physical sample is not an incriminating testimonial communication that triggers the Fifth Amendment privilege against self-incrimination. "[T]he privilege is a bar against compelling 'communications' or 'testimony,' " but making a suspect or accused "the source of 'real or physical evidence' does not violate it." Schmerber v. California , 384 U.S. 757 , 764, 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966).

2015In In re Welfare of J.W., the supreme court explained that a district court’s termination of parental rights based on a parent’s noncompliance with a court order requiring the parent to incriminate him or herself would be a Fifth Amendment violation. 415 N.W.2d 879, 883 (Minn. 1987).

2015In In re Welfare of J.W., the supreme court explained that a district court’s termination of parental rights based on a parent’s noncompliance with a court order requiring the parent to incriminate him or herself would be a Fifth Amendment violation. 415 N.W.2d 879, 883 (Minn. 1987).

2014In Neville, the Supreme Court rejected a Fifth Amendment challenge to an implied-consent statute that allowed a person’s test refusal to be admitted into evidence in a subsequent criminal prosecution. 459 U.S. at 562 , 103 S. Ct. at 921; see also McDonnell v. State, Comm’r of Pub.

2014In Neville, the Supreme Court rejected a Fifth Amendment challenge to an implied-consent statute that allowed a person’s test refusal to be admitted into evidence in a subsequent criminal prosecution. 459 U.S. at 562 , 103 S. Ct. at 921; see also McDonnell v. State, Comm’r of Pub.

1983In discussing the requirement that the defendant must be compelled to testify against himself in order to invoke his Fifth Amendment privilege, the Neville court stated: As we stated in Fisher v. United States, 425 U.S. 391, 397 [ 96 S.Ct. 1569, 1574 , 48 L.Ed.2d 39 ] (1976), “[T]he Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of ‘physical or moral compulsion’ exerted on the person asserting the privilege.” This coercion requirement comes directly from the constitutional language directing that no person “shall be compelled in any criminal ease to be a w

1983In discussing the requirement that the defendant must be compelled to testify against himself in order to invoke his Fifth Amendment privilege, the Neville court stated: As we stated in Fisher v. United States, 425 U.S. 391, 397 [ 96 S.Ct. 1569, 1574 , 48 L.Ed.2d 39 ] (1976), “[T]he Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of ‘physical or moral compulsion’ exerted on the person asserting the privilege.” This coercion requirement comes directly from the constitutional language directing that no person “shall be compelled in any criminal ease to be a w

2025This interpretation of Moose is supported by our decision in State v. Graham, in which we cited Moose for the principle that “[a] defendant’s constitutional right to present a defense . . . does not permit a defendant to compel a prospective witness to waive her Fifth Amendment privilege against self-incrimination.” 764 N.W.2d 340, 349 (Minn. 2009) (citing Moose, 266 N.W.2d at 525 ).

2016But see State v. Graham, 764 N.W.2d 340, 349 (Minn.2009) (“A defendant’s constitutional right to present a defense is not an unfettered right; it does not permit a defendant to compel a prospective witness to waive her Fifth Amendment privilege against self-incrimination.”).

2024On one hand, the supreme court has said that the Fifth Amendment “privilege is a bar against compelling communications or testimony” and that “making a suspect or accused the source of real or physical evidence does not violate it.” See State v. Heinonen, 909 N.W.2d 584, 593-94 (Minn. 2018) (quotation omitted) (stating that “providing a DNA sample was not an incriminating testimonial communication that triggered the Fifth Amendment privilege against self-incrimination”).

2024On one hand, the supreme court has said that the Fifth Amendment “privilege is a bar against compelling communications or testimony” and that “making a suspect or accused the source of real or physical evidence does not violate it.” See State v. Heinonen, 909 N.W.2d 584, 593-94 (Minn. 2018) (quotation omitted) (stating that “providing a DNA sample was not an incriminating testimonial communication that triggered the Fifth Amendment privilege against self-incrimination”).

2017Id. at -, 133 S.Ct. at 2181-84 .

2016The commissioner relies on caselaw stating generally that “a witness who desires the protection of the [Fifth Amendment] privilege [against self-incrimination] must claim it at the time he relies on it.” Salinas v. Texas, 133 S. Ct. 2174, 2179 (2013) (quotations omitted).

2016“An individual does not lose this privilege because he is convicted of a crime or is on probation.” Kaquatosh, 600 N.W.2d at 157 . 7 Here, appellant argues only that requiring him to complete a sex-offender treatment program with a polygraph component will violate his Fifth Amendment privilege.

2001ANALYSIS I. “[WJhether the trial court violated [a witness’s] Fifth Amendment privilege against self-incrimination is a question of law which this court reviews de novo.” State v. Kaquatosh, 600 N.W.2d 153, 156 (Minn.App.1999), review denied (Minn. Dec. 14, 1999).