Fifth Amendment privilege in Oregon

2017Melilli, The Consequences of Refusing Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S Cal L Rev 901, 922 (2002); cf. Gardner, 52 Or App at 669-70 (“[Bjecause the defendant had no constitutional privilege not to submit to the breath test and because her statutory right not to take the test is expressly qualified by statute, her Fifth Amendment privilege against self-incrimination was not violated.”); South Dakota v. Neville, 459 US 553, 565 , 103 S Ct 916 , 74 L Ed 2d 748 (1983) (explaining that, as a matter of due process, it was not “fundame

1986In State v. Gardner, 52 Or App 663, 669-70 , 629 P2d 412 (1981), we held that admitting evidence of a defendant’s refusal to take a breathalyzer test did not violate her Fifth Amendment privilege against self-incrimination: breathalyzer evidence is not considered testimonial or communicative evidence, which is the only type of evidence protected by the privilege against self-incrimination.

2014See Mitchell v. United States, 526 US 314, 316 , 119 S Ct 1307 , 143 L Ed 2d 424 (1999) (addressing “whether, in the federal criminal system, a guilty plea waives [the Fifth Amendment privilege against self-incrimination] in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered”; holding that “the plea is not a waiver of the privilege at sentencing”); State v. Nelson, 246 Or 321, 323 , 424 P2d 223 , cert den, 389 US 964 (1967) (“The courts are in agreement that the privilege against self-incrimination is waived w

2014See Mitchell v. United States, 526 US 314, 316 , 119 S Ct 1307 , 143 L Ed 2d 424 (1999) (addressing “whether, in the federal criminal system, a guilty plea waives [the Fifth Amendment privilege against self-incrimination] in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered”; holding that “the plea is not a waiver of the privilege at sentencing”); State v. Nelson, 246 Or 321, 323 , 424 P2d 223 , cert den, 389 US 964 (1967) (“The courts are in agreement that the privilege against self-incrimination is waived w

1987Miranda v. Arizona, 384 US 436 , 86 S Ct 1602 , 16 L Ed 2d 694 (1966): “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.

1987Miranda v. Arizona, 384 US 436 , 86 S Ct 1602 , 16 L Ed 2d 694 (1966): “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.

2026Without providing any evidence of the questions that McKinley asked defendant, the state could not meet its burden to demonstrate that McKinley’s questions were “necessary to secure [the officer’s] own safety or the safety of the public.” See Quarles, 467 US at 657 (concluding that the “need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylac- tic rule protecting the Fifth Amendment’s privilege against self-incrimination”).

2026Without providing any evidence of the questions that McKinley asked defendant, the state could not meet its burden to demonstrate that McKinley’s questions were “necessary to secure [the officer’s] own safety or the safety of the public.” See Quarles, 467 US at 657 (concluding that the “need for answers to questions in a situation posing a threat to the public safety outweighs the need for the pro- phylactic rule protecting the Fifth Amendment’s privilege against self-incrimination”).

2015In Vondehn , we cited Hall once in describing the Court of Appeals’ reasoning, see 348 Or at 465 , but we did not cite Hall afterwards or apply its methodology in determining whether the physical evidence in that case derived from the Miranda violation, see id. at 476.

2015In Vondehn , we cited Hall once in describing the Court of Appeals’ reasoning, see 348 Or at 465 , but we did not cite Hall afterwards or apply its methodology in determining whether the physical evidence in that case derived from the Miranda violation, see id. at 476.

1995Similarly, [ Schmerber v. California, 384 US 757 , 86 S Ct 1826 , 16 L Ed 2d 908 (1966),] cautioned that the Fifth Amendment may bar the use of testimony obtained when the proffered alternative was so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer `confession.'" Neville, 459 U.S. at 562-63 , 103 S.Ct. at 922 (citations omitted).

1995Similarly, [ Schmerber v. California, 384 US 757 , 86 S Ct 1826 , 16 L Ed 2d 908 (1966),] cautioned that the Fifth Amendment may bar the use of testimony obtained when the proffered alternative was so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer `confession.'" Neville, 459 U.S. at 562-63 , 103 S.Ct. at 922 (citations omitted).

2025Boyd, 360 Or at 309 (noting that Article I, section 12, case law “has relied heavily on federal Fifth Amendment doctrine”).

2017See generally State v. Boyd, 360 Or 302, 309 , 380 P3d 941 (2016).

2023That is, the board explicitly rec- ognizes as much when the supervision condition provides, in part: “The results of a polygraph examination under this subparagraph may not be used in evidence in a hearing to prove a violation of post-prison supervision.” See, e.g., United States v. Antelope, 395 F3d 1128, 1139 (9th Cir 2005) (holding 30 Denning v. Board of Parole that the revocation of probation and supervised release vio- lated the defendant’s Fifth Amendment right against self- incrimination and that such “self-protective silence” could not be punished).

2023That is, the board explicitly rec- ognizes as much when the supervision condition provides, in part: “The results of a polygraph examination under this subparagraph may not be used in evidence in a hearing to prove a violation of post-prison supervision.” See, e.g., United States v. Antelope, 395 F3d 1128, 1139 (9th Cir 2005) (holding 30 Denning v. Board of Parole that the revocation of probation and supervised release vio- lated the defendant’s Fifth Amendment right against self- incrimination and that such “self-protective silence” could not be punished).

2010Furthermore, if the parents’ denial of abuse interferes with effective therapy, then the court ‘may act on that finding to the parents’ detriment without offending the Fifth Amendment privilege.’ Therefore, the additional requirement that the stepfather successfully complete counseling was valid and appropriate.” 166 Vt at 626, 699 A2d at 31 (internal citations omitted).

2010Furthermore, if the parents’ denial of abuse interferes with effective therapy, then the court ‘may act on that finding to the parents’ detriment without offending the Fifth Amendment privilege.’ Therefore, the additional requirement that the stepfather successfully complete counseling was valid and appropriate.” 166 Vt at 626, 699 A2d at 31 (internal citations omitted).

2010Stated otherwise, a defendant cannot invoke the protection of the Harrison rule unless the evidence that the defendant sought to rebut by taking the stand was an inadmissible confession, not evidence of some other kind, even if that evidence was obtained illegally.” McGinnis, 335 Or at 253 (emphasis in original).

2010Stated otherwise, a defendant cannot invoke the protection of the Harrison rule unless the evidence that the defendant sought to rebut by taking the stand was an inadmissible confession, not evidence of some other kind, even if that evidence was obtained illegally.” McGinnis, 335 Or at 253 (emphasis in original).

2005Compare id. (stating that, because a defendant who pleads guilty ‘stands as a witness against himself,’ a guilty plea constitutes a waiver of a Fifth Amendment privilege against self-incrimination) with Mitchell v. United States, 526 US 314, 316 , 119 S Ct 1307 , 143 L Ed 2d 424 (1999) (holding that a defendant who pleads guilty retains the Fifth Amendment right to remain silent at a sentencing proceeding).

2005Compare id. (stating that, because a defendant who pleads guilty ‘stands as a witness against himself,’ a guilty plea constitutes a waiver of a Fifth Amendment privilege against self-incrimination) with Mitchell v. United States, 526 US 314, 316 , 119 S Ct 1307 , 143 L Ed 2d 424 (1999) (holding that a defendant who pleads guilty retains the Fifth Amendment right to remain silent at a sentencing proceeding).

1977See, e.g., United States v. Bohle, supra at 66-67: "Such an examination does not violate the Fifth Amendment privilege, because its sole purpose is to enable an expert to form an opinion as to defendant's mental capacity to form a criminal intent.

1977See, e.g., United States v. Bohle, supra at 66-67: "Such an examination does not violate the Fifth Amendment privilege, because its sole purpose is to enable an expert to form an opinion as to defendant's mental capacity to form a criminal intent.

2017Melilli, The Consequences of Refusing Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S Cal L Rev 901, 922 (2002); cf. Gardner, 52 Or App at 669-70 (“[Bjecause the defendant had no constitutional privilege not to submit to the breath test and because her statutory right not to take the test is expressly qualified by statute, her Fifth Amendment privilege against self-incrimination was not violated.”); South Dakota v. Neville, 459 US 553, 565 , 103 S Ct 916 , 74 L Ed 2d 748 (1983) (explaining that, as a matter of due process, it was not “fundame

2017Melilli, The Consequences of Refusing Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S Cal L Rev 901, 922 (2002); cf. Gardner, 52 Or App at 669-70 (“[Bjecause the defendant had no constitutional privilege not to submit to the breath test and because her statutory right not to take the test is expressly qualified by statute, her Fifth Amendment privilege against self-incrimination was not violated.”); South Dakota v. Neville, 459 US 553, 565 , 103 S Ct 916 , 74 L Ed 2d 748 (1983) (explaining that, as a matter of due process, it was not “fundame

2024To be clear, the Court stated, irrespective of the remedies avail- able, “the violation is complete at the time of the taking,” and “a property owner may bring a Fifth Amendment claim * * * at that time.” Id. at 202 .

2024To be clear, the Court stated, irrespective of the remedies avail- able, “the violation is complete at the time of the taking,” and “a property owner may bring a Fifth Amendment claim * * * at that time.” Id. at 202 .

2026See Chavez v. Martinez, 538 US 760, 767 , 123 S Ct 1994 , 155 L Ed 2d 984 (2003) (“Statements com- pelled by police interrogations of course may not be used against a defendant at trial, but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause [in the Fifth Amendment] occurs[.]” (Internal cita- tion omitted.)).

2026See Chavez v. Martinez, 538 US 760, 767 , 123 S Ct 1994 , 155 L Ed 2d 984 (2003) (“Statements com- pelled by police interrogations of course may not be used against a defendant at trial, but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause [in the Fifth Amendment] occurs[.]” (Internal cita- tion omitted.)).

2025See State v. Dean, 309 Or App 249 , 266 n 5, 481 P3d 322 (2021) (considering state constitutional questions before federal constitutional questions as confirmed in State v. Kennedy, 295 Or 260, 262 , 666 P2d 1316 (1983), concluding that the Article 1, section 12, issue was dispositive, and not reaching similar Fifth Amendment arguments from the defendant). 3 Article I, section 12, provides that “[n]o person shall * * * be compelled in any criminal prosecution to testify against himself.” The Fifth Amendment pro- vides that “[n]o person * * * shall be compelled in any criminal case to be a wit-

2025See State v. Dean, 309 Or App 249 , 266 n 5, 481 P3d 322 (2021) (considering state constitutional questions before federal constitutional questions as confirmed in State v. Kennedy, 295 Or 260, 262 , 666 P2d 1316 (1983), concluding that the Article 1, section 12, issue was dispositive, and not reaching similar Fifth Amendment arguments from the defendant). 3 Article I, section 12, provides that “[n]o person shall * * * be compelled in any criminal prosecution to testify against himself.” The Fifth Amendment pro- vides that “[n]o person * * * shall be compelled in any criminal case to be a wit-