self-incrimination clause in Maryland

2018As is well known, that case found its way to the Supreme Court where the Court held that the prosecutor's argument and the trial court's instruction violated the self-incrimination clause of the Fifth Amendment-a holding that would apply not only in federal courts, but also in state courts by virtue of the Court's then-recent decision in Malloy v. Hogan , 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964).

2018As is well known, that case found its way to the Supreme Court where the Court held that the prosecutor's argument and the trial court's instruction violated the self-incrimination clause of the Fifth Amendment-a holding that would apply not only in federal courts, but also in state courts by virtue of the Court's then-recent decision in Malloy v. Hogan , 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964).

2025As the Court explained in Washington, 482 Md. at 454-55 , 454 n.14, however, the justification for departure from its “historical stance that the State and federal provisions were to be read in pari materia” does not carry over to the context of the Fourth Amendment and Article 26.

2025See, e.g., Clark v. State, 485 Md. 674 , 717- 18 (2023) (right to counsel under Articles 21 and 24 is broader than the right to counsel under the Sixth Amendment); Marshall v. State, 415 Md. 248, 259-60 (2010) (Article 22, 15 Maryland’s privilege against self-incrimination is “more comprehensive than” the self- incrimination clause of the Fifth Amendment) (quoting Crosby v. State, 366 Md. 518 , 527 n.8 (2001)).

2003The State challenges this determination, and we sustain the challenge. 425 U.S. at 316 , 96 S.Ct. 1551 (emphasis supplied).

2003The State challenges this determination, and we sustain the challenge. 425 U.S. at 316 , 96 S.Ct. 1551 (emphasis supplied).

2002In one of the cases pointing out that “ ‘Article 22 is generally “in pari materia ” with its federal counterpart,’ ” we immediately continued: “There appear to be ... two situations where the privilege under Article 22 has been viewed differently, and more broadly, than the privilege under the Fifth Amendment.” Choi v. State, 316 Md. 529 , 535 n. 3, 560 A.2d 1108 , 1111 n. 3 (1989).

2002In one of the cases pointing out that “ ‘Article 22 is generally “in pari materia ” with its federal counterpart,’ ” we immediately continued: “There appear to be ... two situations where the privilege under Article 22 has been viewed differently, and more broadly, than the privilege under the Fifth Amendment.” Choi v. State, 316 Md. 529 , 535 n. 3, 560 A.2d 1108 , 1111 n. 3 (1989).

1998Id. at 215 , 108 S.Ct. at 2350 , 101 L.Ed.2d at 200 .

1998Id. at 215 , 108 S.Ct. at 2350 , 101 L.Ed.2d at 200 .

1989As explained in the leading case of Rogers v. United States, 340 U.S. 367, 372-373 , 71 S.Ct. 438, 442 , 95 L.Ed. 344 (1951): “Since the privilege against self-incrimination presupposes a real danger of legal detriment arising from the disclosure, petitioner cannot invoke the privilege where response to the specific question in issue here would not further incriminate her.

1989As explained in the leading case of Rogers v. United States, 340 U.S. 367, 372-373 , 71 S.Ct. 438, 442 , 95 L.Ed. 344 (1951): “Since the privilege against self-incrimination presupposes a real danger of legal detriment arising from the disclosure, petitioner cannot invoke the privilege where response to the specific question in issue here would not further incriminate her.

1989See, e.g., Shifflett v. State, 245 Md. 169, 173 , 225 A.2d 440 (1967); Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526 (1960), cert. denied, 365 U.S. 853 , 81 S.Ct. 819 , 5 L.Ed.2d 817 (1961); Adams, Nelson, and Timanus v. State, 200 Md. 133, 144 , 88 A.2d 556 (1952); Raymond v. State ex rel.

1989See, e.g., Shifflett v. State, 245 Md. 169, 173 , 225 A.2d 440 (1967); Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526 (1960), cert. denied, 365 U.S. 853 , 81 S.Ct. 819 , 5 L.Ed.2d 817 (1961); Adams, Nelson, and Timanus v. State, 200 Md. 133, 144 , 88 A.2d 556 (1952); Raymond v. State ex rel.

1989See, e.g., Shifflett v. State, 245 Md. 169, 173 , 225 A.2d 440 (1967); Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526 (1960), cert. denied, 365 U.S. 853 , 81 S.Ct. 819 , 5 L.Ed.2d 817 (1961); Adams, Nelson, and Timanus v. State, 200 Md. 133, 144 , 88 A.2d 556 (1952); Raymond v. State ex rel.

1989See, e.g., Shifflett v. State, 245 Md. 169, 173 , 225 A.2d 440 (1967); Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526 (1960), cert. denied, 365 U.S. 853 , 81 S.Ct. 819 , 5 L.Ed.2d 817 (1961); Adams, Nelson, and Timanus v. State, 200 Md. 133, 144 , 88 A.2d 556 (1952); Raymond v. State ex rel.

1989See, e.g., Shifflett v. State, 245 Md. 169, 173 , 225 A.2d 440 (1967); Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526 (1960), cert. denied, 365 U.S. 853 , 81 S.Ct. 819 , 5 L.Ed.2d 817 (1961); Adams, Nelson, and Timanus v. State, 200 Md. 133, 144 , 88 A.2d 556 (1952); Raymond v. State ex rel.

1987This statement understandably led the Court of Special Appeals in the instant case to conclude that this Court viewed the Maryland Declaration of Rights one way and the Fifth Amendment a different way. 65 Md.App. at 331-334 , 500 A.2d 650 .

1987This statement understandably led the Court of Special Appeals in the instant case to conclude that this Court viewed the Maryland Declaration of Rights one way and the Fifth Amendment a different way. 65 Md.App. at 331-334 , 500 A.2d 650 .

1987In addition to pointing out factual differences between Smith and Knox ( 283 Md. at 189 ), we also stated that Knox was inapposite because it was concerned with the self-incrimination privilege under the Maryland Declaration of Rights, whereas the witness in the Smith case relied solely on the self-incrimination privilege under the Fifth Amendment to the federal constitution.

1983See, e.g., State v. Martin, 410 P.2d 132, 137 (Ariz. App. 1966); Commonwealth v. LaFrennie, 13 Mass. App. 977, 432 N.E.2d 535 (1982); State v. Lindsey, 284 N.W.2d 368 (Minn. 1979); Eckert v. State, 96 Nev. 96 , 605 P.2d 617 (1980); Founts v. State, supra, 87 Nev. 165 ; State v. Miner, 128 Vt. 55 , 258 A.2d 815, 825 (1969). [7] Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), held that notice of alibi provisions do not violate the Fifth Amendment's self-incrimination clause, although, as previously discussed, the Court reserved ruling on the sanction of excluding the de

1983See, e.g., State v. Martin, 410 P.2d 132, 137 (Ariz. App. 1966); Commonwealth v. LaFrennie, 13 Mass. App. 977, 432 N.E.2d 535 (1982); State v. Lindsey, 284 N.W.2d 368 (Minn. 1979); Eckert v. State, 96 Nev. 96 , 605 P.2d 617 (1980); Founts v. State, supra, 87 Nev. 165 ; State v. Miner, 128 Vt. 55 , 258 A.2d 815, 825 (1969). [7] Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), held that notice of alibi provisions do not violate the Fifth Amendment's self-incrimination clause, although, as previously discussed, the Court reserved ruling on the sanction of excluding the de

1983See, e.g., State v. Martin, 410 P.2d 132, 137 (Ariz. App. 1966); Commonwealth v. LaFrennie, 13 Mass. App. 977, 432 N.E.2d 535 (1982); State v. Lindsey, 284 N.W.2d 368 (Minn. 1979); Eckert v. State, 96 Nev. 96 , 605 P.2d 617 (1980); Founts v. State, supra, 87 Nev. 165 ; State v. Miner, 128 Vt. 55 , 258 A.2d 815, 825 (1969). [7] Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), held that notice of alibi provisions do not violate the Fifth Amendment's self-incrimination clause, although, as previously discussed, the Court reserved ruling on the sanction of excluding the de

1983See, e.g., State v. Martin, 410 P.2d 132, 137 (Ariz. App. 1966); Commonwealth v. LaFrennie, 13 Mass. App. 977, 432 N.E.2d 535 (1982); State v. Lindsey, 284 N.W.2d 368 (Minn. 1979); Eckert v. State, 96 Nev. 96 , 605 P.2d 617 (1980); Founts v. State, supra, 87 Nev. 165 ; State v. Miner, 128 Vt. 55 , 258 A.2d 815, 825 (1969). [7] Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), held that notice of alibi provisions do not violate the Fifth Amendment's self-incrimination clause, although, as previously discussed, the Court reserved ruling on the sanction of excluding the de

1983Reynolds v. Superior Court, 12 Cal.3d 834 , 117 Cal. Rptr. 437 , 528 P.2d 45 (1974).

1983Reynolds v. Superior Court, 12 Cal.3d 834 , 117 Cal. Rptr. 437 , 528 P.2d 45 (1974).

1983Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), held that notice of alibi provisions do not violate the Fifth Amendment’s self-incrimination clause, although, as previously discussed, the Court reserved ruling on the sanction of excluding the defendant’s evidence.

1983Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), held that notice of alibi provisions do not violate the Fifth Amendment’s self-incrimination clause, although, as previously discussed, the Court reserved ruling on the sanction of excluding the defendant’s evidence.

1983See, e.g., State v. Martin, 410 P.2d 132, 137 (Ariz. App. 1966); Commonwealth v. LaFrennie, 13 Mass. App. 977, 432 N.E.2d 535 (1982); State v. Lindsey, 284 N.W.2d 368 (Minn. 1979); Eckert v. State, 96 Nev. 96 , 605 P.2d 617 (1980); Founts v. State, supra, 87 Nev. 165 ; State v. Miner, 128 Vt. 55 , 258 A.2d 815, 825 (1969). [7] Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), held that notice of alibi provisions do not violate the Fifth Amendment's self-incrimination clause, although, as previously discussed, the Court reserved ruling on the sanction of excluding the de

1981II In addition to the federal constitutional problems presented in this case, I believe that the trial court’s order was inconsistent with Art. 22 of the Maryland Declaration of Rights, which provides "[t]hat no man ought to be compelled to give evidence against himself in a criminal case.” In Allen v. State, 183 Md. 603 , 39 A.2d 820 (1944), this Court made it clear that Art. 22 of the Declaration of Rights encompasses more than oral testimony, and that it embraces certain physical demonstrations linking the defendant with the crime.

1981II In addition to the federal constitutional problems presented in this case, I believe that the trial court’s order was inconsistent with Art. 22 of the Maryland Declaration of Rights, which provides "[t]hat no man ought to be compelled to give evidence against himself in a criminal case.” In Allen v. State, 183 Md. 603 , 39 A.2d 820 (1944), this Court made it clear that Art. 22 of the Declaration of Rights encompasses more than oral testimony, and that it embraces certain physical demonstrations linking the defendant with the crime.

1981Schmerber v. California, 384 U.S. 757, 761 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966); see Fisher v. United States, 425 U.S. 391, 411 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976).

1981Schmerber v. California, 384 U.S. 757, 761 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966); see Fisher v. United States, 425 U.S. 391, 411 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976).

1978However, even if Watson's statement may have been "voluntary" for purposes of the self-incrimination clause of the Fifth Amendment, I do not believe, given the circumstances in which it occurred, that it implies a waiver which can be deemed voluntary "with `regard ... [to] the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached.'" United States v. Satterfield, 558 F.2d 655, 657 (2d Cir.1977), quoting Judge Friendly, dissenting in United States v. Massimo, 432 F.2d 324, 327 (2d Cir.1970), cert. denied, 400 U.S. 1022 , 91 S.Ct. 586 ,

1978However, even if Watson’s statement may have been “voluntary” for purposes of the self-incrimination clause of the Fifth Amendment, I do not believe, given the circumstances in which it occurred, that it implies a waiver which can be deemed voluntary “with ‘regard ... [to] the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached.’ ” United States v. Satterfield, 558 F. 2d 655, 657 (2d Cir. 1977), quoting Judge Friendly, dissenting in United States v. Massimo, 432 F. 2d 324, 327 (2d Cir. 1970), cert. denied, 400 U. S. 1022 , 91 S. Ct.

1978However, even if Watson's statement may have been "voluntary" for purposes of the self-incrimination clause of the Fifth Amendment, I do not believe, given the circumstances in which it occurred, that it implies a waiver which can be deemed voluntary "with `regard ... [to] the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached.'" United States v. Satterfield, 558 F.2d 655, 657 (2d Cir.1977), quoting Judge Friendly, dissenting in United States v. Massimo, 432 F.2d 324, 327 (2d Cir.1970), cert. denied, 400 U.S. 1022 , 91 S.Ct. 586 ,

1978However, even if Watson’s statement may have been “voluntary” for purposes of the self-incrimination clause of the Fifth Amendment, I do not believe, given the circumstances in which it occurred, that it implies a waiver which can be deemed voluntary “with ‘regard ... [to] the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached.’ ” United States v. Satterfield, 558 F. 2d 655, 657 (2d Cir. 1977), quoting Judge Friendly, dissenting in United States v. Massimo, 432 F. 2d 324, 327 (2d Cir. 1970), cert. denied, 400 U. S. 1022 , 91 S. Ct.