Fifth Amendment privilege in Georgia

2020See Miranda v. Arizona, 384 U.S. 436, 468 (III) n.37 ( 86 SCt 1602 , 16 LE2d 694) (1966) (“[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.

2020See Miranda v. Arizona, 384 U.S. 436, 468 (III) n.37 ( 86 SCt 1602 , 16 LE2d 694) (1966) (“[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.

2013Responding to the Fifth Amendment objection that Appellant raised at trial, the State argues that Appellant did not invoke his own rights and lacked standing to invoke either Jamal’s right against self-incrimination or Jamal’s due process right not to have his silence used to incriminate him after being advised of his Miranda rights, see Doyle v. Ohio, 426 U. S. 610, 611 ( 96 SCt 2240 , 49 LE2d 91) (1976). 2 The State is correct.

2013Responding to the Fifth Amendment objection that Appellant raised at trial, the State argues that Appellant did not invoke his own rights and lacked standing to invoke either Jamal’s right against self-incrimination or Jamal’s due process right not to have his silence used to incriminate him after being advised of his Miranda rights, see Doyle v. Ohio, 426 U. S. 610, 611 ( 96 SCt 2240 , 49 LE2d 91) (1976). 2 The State is correct.

2022See Shealey v. State, 308 Ga. 847, 852 (2) (b) ( 843 SE2d 864 ) (2020) (citing Mitchell v. United States, 526 U. S. 314, 326 ( 119 SCt 1307 , 143 LE2d 424) (1999), for the proposition that “a defendant’s Fifth Amendment privilege against self-incrimination is not extinguished by the entry of a guilty plea but rather may be asserted at least until sentencing”).

2022See Shealey v. State, 308 Ga. 847, 852 (2) (b) ( 843 SE2d 864 ) (2020) (citing Mitchell v. United States, 526 U. S. 314, 326 ( 119 SCt 1307 , 143 LE2d 424) (1999), for the proposition that “a defendant’s Fifth Amendment privilege against self-incrimination is not extinguished by the entry of a guilty plea but rather may be asserted at least until sentencing”).

2022See Shealey v. State, 308 Ga. 847, 852 (2) (b) ( 843 SE2d 864 ) (2020) (citing Mitchell v. United States, 526 U. S. 314, 326 ( 119 SCt 1307 , 143 LE2d 424) (1999), for the proposition that “a defendant’s Fifth Amendment privilege against self-incrimination is not extinguished by the entry of a guilty plea but rather may be asserted at least until sentencing”).

2022See Shealey v. State, 308 Ga. 847, 852 (2) (b) ( 843 SE2d 864 ) (2020) (citing Mitchell v. United States, 526 U. S. 314, 326 ( 119 SCt 1307 , 143 LE2d 424) (1999), for the proposition that “a defendant’s Fifth Amendment privilege against self-incrimination is not extinguished by the entry of a guilty plea but rather may be asserted at least until sentencing”).

2019Here, it is undisputed that Ward’s statements during the Internal Affairs investigation constitute compelled, immunized 16 statements subject to the constitutional protections of the Fifth and Fourteenth Amendments.6 In Kastigar, 406 U.S. at 453 (III), the United States Supreme Court ruled that under the Fifth Amendment privilege against self-incrimination, the use in any criminal case of compelled testimony or other information “(or any information directly or indirectly derived from such testimony or other information)” is prohibited.

2019Here, it is undisputed that Ward’s statements during the Internal Affairs investigation constitute compelled, immunized 16 statements subject to the constitutional protections of the Fifth and Fourteenth Amendments.6 In Kastigar, 406 U.S. at 453 (III), the United States Supreme Court ruled that under the Fifth Amendment privilege against self-incrimination, the use in any criminal case of compelled testimony or other information “(or any information directly or indirectly derived from such testimony or other information)” is prohibited.

2012Id. at 437 (II).

2002In any event, if there is a rational basis for Gould to believe that answering a question posed to him could incriminate him in future criminal proceedings, and he invokes his Fifth Amendment privilege, he may refuse to answer without penalty until he is “assured that neither [the answer] nor its fruits may be used against him in a subsequent criminal proceeding.” (Punctuation omitted.) Minnesota v. Murphy, 465 U. S. 420, 429 (II) (B) (104 SC 1136, 79 LE2d 409) (1984). 4.

2007See OCGA§ 24-9-28 (b); Willard v. State, 244 Ga. App. 469, 470 (1) (a) ( 535 SE2d 820 ) (2000) (grant of immunity pursuant to OCGA § 24-9-28 (a) removes any right to invoke the privilege against self-incrimination).

2007See OCGA§ 24-9-28 (b); Willard v. State, 244 Ga. App. 469, 470 (1) (a) ( 535 SE2d 820 ) (2000) (grant of immunity pursuant to OCGA § 24-9-28 (a) removes any right to invoke the privilege against self-incrimination).

2006See also Buchanan v. Kentucky, 483 U.S. 402 (111), 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987).

1993The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution. [Cits.]” Buchanan v. Kentucky, 483 U. S. 402, 422-423 (III A) (107 SC 2906, 97 LE2d 336) (1987).

2003See Cates v. State, 245 Ga. 30, 33 (1) ( 262 SE2d 796 ) (1980) (jury authorized to draw inference of guilt from witness who refused to answer questions under a claim of privilege though he had lost his Fifth Amendment right to refuse to testify). (b) Reedman also contends he was justified in possessing a stolen car because his arrest was unlawful.

2003See Cates v. State, 245 Ga. 30, 33 (1) ( 262 SE2d 796 ) (1980) (jury authorized to draw inference of guilt from witness who refused to answer questions under a claim of privilege though he had lost his Fifth Amendment right to refuse to testify). (b) Reedman also contends he was justified in possessing a stolen car because his arrest was unlawful.

1987See also Ingram v. State, 253 Ga. 622 (14) ( 323 SE2d 801 ) (1984) (noting that the defense introduction of psychiatric testimony constitutes a waiver of the defendant’s Fifth Amendment privilege).

1987See also Ingram v. State, 253 Ga. 622 (14) ( 323 SE2d 801 ) (1984) (noting that the defense introduction of psychiatric testimony constitutes a waiver of the defendant’s Fifth Amendment privilege).

2000Counsel did not, however, articulate a Fifth Amendment objection. 8 Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SC 2052, 80 LE2d 674) (1984). 9 Id., 466 U. S. at 693-694 . 10 Id., 466 U. S. at 697 . 11 Strickland, 466 U. S. at 689 . 12 See Gober v. State, 264 Ga. 226, 228 ( 443 SE2d 616 ) (1994). 13 Berry v. State, 267 Ga. 605, 607 ( 481 SE2d 203 ) (1997).

2000Counsel did not, however, articulate a Fifth Amendment objection. 8 Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SC 2052, 80 LE2d 674) (1984). 9 Id., 466 U. S. at 693-694 . 10 Id., 466 U. S. at 697 . 11 Strickland, 466 U. S. at 689 . 12 See Gober v. State, 264 Ga. 226, 228 ( 443 SE2d 616 ) (1994). 13 Berry v. State, 267 Ga. 605, 607 ( 481 SE2d 203 ) (1997).

1999"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 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985).

1999"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 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985).

1998See Smith v. State, 225 Ga. 328, 331 (7) ( 168 SE2d 587 ) (1969); Hays v. State, 16 Ga. App. 20, 21 (4) ( 84 SE 497 ) (1915); see also Kelly v. State, 209 Ga. App. 789, 793-794 ( 434 SE2d 743 ) (1993).

1998See Smith v. State, 225 Ga. 328, 331 (7) ( 168 SE2d 587 ) (1969); Hays v. State, 16 Ga. App. 20, 21 (4) ( 84 SE 497 ) (1915); see also Kelly v. State, 209 Ga. App. 789, 793-794 ( 434 SE2d 743 ) (1993).

1994Edwards v. Arizona, supra at 484-485; Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

1994Edwards v. Arizona, supra at 484-485; Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

1991It turns the matter on its head to argue that Christenson's waiver was less voluntary than Spring's. [3] We hold that the officer's conduct did not amount to the kind of "affirmative misrepresentation" by the police which would "invalidate a suspect's waiver of the Fifth Amendment privilege." Colorado v. Spring, supra at 576 (n. 8), 107 S.Ct. at 858 (n. 8).

1991It turns the matter on its head to argue that Christenson's waiver was less voluntary than Spring's. [3] We hold that the officer's conduct did not amount to the kind of "affirmative misrepresentation" by the police which would "invalidate a suspect's waiver of the Fifth Amendment privilege." Colorado v. Spring, supra at 576 (n. 8), 107 S.Ct. at 858 (n. 8).

2011As an initial matter, the 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.” (Footnote omitted.) Schmerber v. California, 384 U. S. 757, 761 (II) (86 SC 1826, 16 LE2d 908) (1966).

2011As an initial matter, the 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.” (Footnote omitted.) Schmerber v. California, 384 U. S. 757, 761 (II) (86 SC 1826, 16 LE2d 908) (1966).

1990“Prior to Miranda the admissibility of an accused’s in-custody statements was judged solely by whether they were ‘voluntary’ within the meaning of the Due Process Clause. [Cits.] If a suspect’s statements had been obtained by ‘techniques and methods offensive to due process’ [cits.], or under circumstances in which the suspect clearly had no opportunity to exercise ‘a free and unconstrained will’ [cits.], the statements would not be admitted.” Oregon v. Elstad, 470 U. S. 298, 304 (105 SC 1285, 84 LE2d 222) (1985); see Jackson v. Denno, supra. “Indeed, even after holding that the Fifth Amendmen

1990“Prior to Miranda the admissibility of an accused’s in-custody statements was judged solely by whether they were ‘voluntary’ within the meaning of the Due Process Clause. [Cits.] If a suspect’s statements had been obtained by ‘techniques and methods offensive to due process’ [cits.], or under circumstances in which the suspect clearly had no opportunity to exercise ‘a free and unconstrained will’ [cits.], the statements would not be admitted.” Oregon v. Elstad, 470 U. S. 298, 304 (105 SC 1285, 84 LE2d 222) (1985); see Jackson v. Denno, supra. “Indeed, even after holding that the Fifth Amendmen

2019Under this "highly deferential" clear-error standard, we will not reverse a trial court's factual findings "if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them." Yarbrough v. State , 303 Ga. 594 , 596-597 (2), 814 S.E.2d 286 (2018) (citation and punctuation omitted).

2019Under this “highly deferential” clear-error standard, we will not reverse a trial court’s factual findings “if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them.” Yarbrough v. State, 303 Ga. 594, 596-597 (2) ( 814 SE2d 286 ) (2018) (citation and punctuation omitted). 10 The record here supports the finding that Jordan’s trial lawyer was present in the courtroom during Feazell’s invocation of his Fifth Amendment right against self-incrimination.

2019In its order denying Jordan's motion for a new trial, the trial court expressly found that defense counsel "was present during all critical stages of the trial, and in fact was present in court when co-defendant [Feazell] invoked his Fifth Amendment privilege." As we have explained repeatedly, "a trial court's factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous." Green v. State , 302 Ga. 816 , 818 (2), 809 S.E.2d 738 (2018) (citations and punctuation omitted).

2019In its order denying Jordan's motion for a new trial, the trial court expressly found that defense counsel "was present during all critical stages of the trial, and in fact was present in court when co-defendant [Feazell] invoked his Fifth Amendment privilege." As we have explained repeatedly, "a trial court's factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous." Green v. State , 302 Ga. 816 , 818 (2), 809 S.E.2d 738 (2018) (citations and punctuation omitted).

2018The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation."); Howard v. State , 237 Ga. 471 , 474, 228 S.E.2d 860 (1976) (holding based on Miranda and Griffin v. California , 380 U.S. 609 , 614, 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), that "it is reversible error to instruct the jury in a criminal case ... that silence ... by a person in police custody may amount to an admission (of guilt).").

2018The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation."); Howard v. State , 237 Ga. 471 , 474, 228 S.E.2d 860 (1976) (holding based on Miranda and Griffin v. California , 380 U.S. 609 , 614, 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), that "it is reversible error to instruct the jury in a criminal case ... that silence ... by a person in police custody may amount to an admission (of guilt).").

2018The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation."); Howard v. State , 237 Ga. 471 , 474, 228 S.E.2d 860 (1976) (holding based on Miranda and Griffin v. California , 380 U.S. 609 , 614, 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), that "it is reversible error to instruct the jury in a criminal case ... that silence ... by a person in police custody may amount to an admission (of guilt).").

2018The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation."); Howard v. State , 237 Ga. 471 , 474, 228 S.E.2d 860 (1976) (holding based on Miranda and Griffin v. California , 380 U.S. 609 , 614, 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), that "it is reversible error to instruct the jury in a criminal case ... that silence ... by a person in police custody may amount to an admission (of guilt).").

2011See Culpepper v. State, 132 Ga. App. 733 ( 209 SE2d 18 ) (1974) (a defendant’s testimony at a motion to suppress could not be used against him in the State’s case at trial because that would force him to forfeit a valid Fourth Amendment claim or waive his Fifth Amendment privilege against self-incrimination).

2011See Culpepper v. State, 132 Ga. App. 733 ( 209 SE2d 18 ) (1974) (a defendant’s testimony at a motion to suppress could not be used against him in the State’s case at trial because that would force him to forfeit a valid Fourth Amendment claim or waive his Fifth Amendment privilege against self-incrimination).

1998Id.; Pervis, 901 F2d at 947; see Savannah Surety Assoc. v. Master, 240 Ga. 438, 439 ( 241 SE2d 192 ) (1978).

1998Id.; Pervis, 901 F2d at 947; see Savannah Surety Assoc. v. Master, 240 Ga. 438, 439 ( 241 SE2d 192 ) (1978).

1996Citing Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968), counsel for appellant objected to the admission at trial of appellant’s bond hearing testimony on the ground that its use in the trial required appellant to surrender his Fifth Amendment privilege against self-incrimination in order to assert his Eighth Amendment right to a reasonable bond pending trial.

1974These circumstances fall squarely within the rule announced by the United States Supreme Court in Simmons v. United States, 390 U. S. 377, 394 (88 SC 967, 19 LE2d 1247): ". . . in this case Garrett was obliged either to give up what he believed... to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination.

1985No attempt was made by counsel to ascertain whether or not Charles would, in fact, continue to attempt invocation of the Fifth Amendment privilege (cf. Lingerfelt v. State, 235 Ga. 139 ( 218 SE2d 752 ) (1975)), or whether Charles would offer testimony in explanation of his statement or in exculpation of appellant.

1985No attempt was made by counsel to ascertain whether or not Charles would, in fact, continue to attempt invocation of the Fifth Amendment privilege (cf. Lingerfelt v. State, 235 Ga. 139 ( 218 SE2d 752 ) (1975)), or whether Charles would offer testimony in explanation of his statement or in exculpation of appellant.

1995See Malloy v. Hogan, 378 U. S. 1 (84 SC 1489, 12 LE2d 653) (1964) (holding the Fifth Amendment’s privilege against self-incrimination applicable to the states); Benton v. Maryland, 395 U. S. 784 (89 SC 2056, 23 LE2d 707) (1969) (holding the Double Jeopardy Clause of the Fifth Amendment applicable to the states).

1982The prohibition against a grant of use immunity was extended to the states in Malloy v. Hogan, 378 U. S. 1 (84 SC 1489, 12 LE2d 653) (1964).