Fifth Amendment privilege in New Mexico

2026See generally Miranda v. Arizona, 384 U.S. 436, 469-71 (1966) (explaining that the right to counsel, no less than the right to remain silent, is indispensable in protecting an accused’s Fifth Amendment privilege against self-incrimination in the face of custodial interrogation). 1 state may comment on silence during each as substantive proof of guilt or 2 impeachment evidence). 3 {11} For the reasons that follow, we conclude Defendant’s request for counsel and 4 silence fall into the post-arrest, post-Miranda period and, as such, are 5 constitutionally protected.

2026See generally Miranda v. Arizona, 384 U.S. 436, 469-71 (1966) (explaining that the right to counsel, no less than the right to remain silent, is indispensable in protecting an accused’s Fifth Amendment privilege against self-incrimination in the face of custodial interrogation). 1 state may comment on silence during each as substantive proof of guilt or 2 impeachment evidence). 3 {11} For the reasons that follow, we conclude Defendant’s request for counsel and 4 silence fall into the post-arrest, post-Miranda period and, as such, are 5 constitutionally protected.

2014See Miranda, 384 U.S. at 467 ; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that “the Fifth Amendment’s exception from compulsory self-incrimination” applies to the states through the Fourteenth Amendment).

2013See Miranda, 384 U.S. at 467 ; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that “the Fifth Amendment’s exception from compulsory self-incrimination” applies to the states through the Fourteenth Amendment).

2025See Costillo, 2020-NMCA-051, ¶¶ 11, 14 (holding that the defendant demonstrated his intent not to speak where he clearly stated that he did not wish to discuss the topic on which he was being questioned and continually asked to stop the interview). {8} Separately, Defendant also asserts that the prosecutor “primed the jury to expect a statement from [Defendant] and to consider his silence” when, during opening, the prosecutor stated to the jury, “[Y]ou heard [defense counsel] say that this is the place where people who are not guilty come to say that they’re not guilty.” Defense counsel did no

2020See DeGraff, 2006-NMSC-011, ¶ 20 (recognizing “that silence is protected only if a right to remain silent is invoked”); see also Salinas, 570 U.S. at 191 (“Before [the defendant] could rely on the privilege against self-incrimination, he was required to invoke it.”).

2025But “if [the d]efendant did not invoke his Fifth Amendment privilege, the prosecutor’s comments on [the d]efendant’s silence were not constitutionally prohibited.” Id. ¶ 13; see also State v. Gutierrez, 1995-NMCA-018 , ¶ 8, 119 N.M. 618 , 894 P.2d 395 (“As a general rule, the constitutional privilege against self-incrimination is available only if it is invoked as the ground for refusing to speak.”). {6} The State observes that “there is no evidence that Defendant asserted a right to silence in any manner.” Defendant argues that he “sufficiently demonstrated his intent not to speak and to invo

2025But “if [the d]efendant did not invoke his Fifth Amendment privilege, the prosecutor’s comments on [the d]efendant’s silence were not constitutionally prohibited.” Id. ¶ 13; see also State v. Gutierrez, 1995-NMCA-018 , ¶ 8, 119 N.M. 618 , 894 P.2d 395 (“As a general rule, the constitutional privilege against self-incrimination is available only if it is invoked as the ground for refusing to speak.”). {6} The State observes that “there is no evidence that Defendant asserted a right to silence in any manner.” Defendant argues that he “sufficiently demonstrated his intent not to speak and to invo

2022As a consequence, if a public employee is put in a position where they must choose between exercising their constitutional self- incrimination protection and maintaining their public employment, that employee need not expressly raise their Fifth Amendment rights, because statements in this situation are deemed “coerced.” See Garrity, 385 U.S. at 500 ; see also Salinas v. Texas, 570 U.S. 178, 185 (2013) (noting that Garrity reflects the idea that “a witness need not expressly invoke the privilege where some form of official compulsion denies him a free choice to admit, to deny, or to refuse to

2020See DeGraff, 2006-NMSC-011, ¶ 20 (recognizing “that silence is protected only if a right to remain silent is invoked”); see also Salinas, 570 U.S. at 191 (“Before [the defendant] could rely on the privilege against self-incrimination, he was required to invoke it.”).

2015See also United States v. Kimball, 15 F.3d 54, 56 (5th Cir. 1994) (holding that a declarant cannot cause his own unavailability by invoking his Fifth Amendment privilege against self- incrimination); United States v. Hughes, 535 F.3d 880, 882 (8th Cir. 2008). 8 {29} Defendant was not unavailable as contemplated by Rule 11-804(A)(1).

2015See United States v. Peterson, 100 F.3d 7, 13 (2d 14 Cir. 1996) (“When the defendant invokes his Fifth Amendment privilege, he has 15 made himself unavailable to any other party, but he is not unavailable to himself.”). 16 See also United States v. Kimball, 15 F.3d 54, 56 (5th Cir. 1994) (holding that a 17 declarant cannot cause his own unavailability by invoking his Fifth Amendment 18 privilege against self-incrimination); United States v. Hughes, 535 F.3d 880, 882 (8th 16 1 Cir. 2008). 2 {29} Defendant was not unavailable as contemplated by Rule 11-804(A)(1).

2015See United States v. Peterson, 100 F.3d 7, 13 (2d Cir. 1996) (“When the defendant invokes his Fifth Amendment privilege, he has made himself unavailable to any other party, but he is not unavailable to himself.”).

2015See United States v. Peterson, 100 F.3d 7, 13 (2d 14 Cir. 1996) (“When the defendant invokes his Fifth Amendment privilege, he has 15 made himself unavailable to any other party, but he is not unavailable to himself.”). 16 See also United States v. Kimball, 15 F.3d 54, 56 (5th Cir. 1994) (holding that a 17 declarant cannot cause his own unavailability by invoking his Fifth Amendment 18 privilege against self-incrimination); United States v. Hughes, 535 F.3d 880, 882 (8th 16 1 Cir. 2008). 2 {29} Defendant was not unavailable as contemplated by Rule 11-804(A)(1).

2015See also United States v. Kimball, 15 F.3d 54, 56 (5th Cir. 1994) (holding that a declarant cannot cause his own unavailability by invoking his Fifth Amendment privilege against self- incrimination); United States v. Hughes, 535 F.3d 880, 882 (8th Cir. 2008). 8 {29} Defendant was not unavailable as contemplated by Rule 11-804(A)(1).

2015See United States v. Peterson, 100 F.3d 7, 13 (2d 14 Cir. 1996) (“When the defendant invokes his Fifth Amendment privilege, he has 15 made himself unavailable to any other party, but he is not unavailable to himself.”). 16 See also United States v. Kimball, 15 F.3d 54, 56 (5th Cir. 1994) (holding that a 17 declarant cannot cause his own unavailability by invoking his Fifth Amendment 18 privilege against self-incrimination); United States v. Hughes, 535 F.3d 880, 882 (8th 16 1 Cir. 2008). 2 {29} Defendant was not unavailable as contemplated by Rule 11-804(A)(1).

2012Randy J., 2011-NMCA-105, ¶¶ 14, 17-18 .

2011Randy J., 2011-NMCA-105, ¶¶ 14, 17-18 , 150 N.M. 683 , 265 P.3d 734 .

2007In that case, the defendant sought to present the exculpatory testimony of a witness who invoked his Fifth Amendment privilege. 98 N.M. at 431 , 649 P.2d at 499 .

2007In that case, the defendant sought to present the exculpatory testimony of a witness who invoked his Fifth Amendment privilege. 98 N.M. at 431 , 649 P.2d at 499 .

1996See United States v. Barton, 731 F.2d 669, 674 (10th Cir.1984) (holding prosecutor’s comment on missing explanation where it could only have come from the accused constituted an impermissible comment on Fifth Amendment privilege); State v. Garcia, 118 N.M. 773, 777-79 , 887 P.2d 767, 771-73 (Ct.App.1994), cert. denied, 119 N.M. 168 , 889 P.2d 203 (1995); State v. Hennessy, 114 N.M. 283, 285-90 , 837 P.2d 1366, 1368-73 (Ct.App.), cert. denied, 114 N.M. 82 , 835 P.2d 80 (1992).

1996See United States v. Barton, 731 F.2d 669, 674 (10th Cir.1984) (holding prosecutor’s comment on missing explanation where it could only have come from the accused constituted an impermissible comment on Fifth Amendment privilege); State v. Garcia, 118 N.M. 773, 777-79 , 887 P.2d 767, 771-73 (Ct.App.1994), cert. denied, 119 N.M. 168 , 889 P.2d 203 (1995); State v. Hennessy, 114 N.M. 283, 285-90 , 837 P.2d 1366, 1368-73 (Ct.App.), cert. denied, 114 N.M. 82 , 835 P.2d 80 (1992).

2006Comment {8} In Griffin v. California, 380 U.S. 609, 614 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), the United States Supreme Court held that a defendant's Fifth Amendment privilege is violated in a state court trial when the prosecution asks the jury to draw an adverse conclusion from the defendant's failure to testify.

2006Comment {8} In Griffin v. California, 380 U.S. 609, 614 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), the United States Supreme Court held that a defendant's Fifth Amendment privilege is violated in a state court trial when the prosecution asks the jury to draw an adverse conclusion from the defendant's failure to testify.

1998See generally United States v. Alessio, 528 F.2d 1079, 1081 (9th Cir.1976) (“It has long been recognized that the Executive Branch of government ‘has exclusive authori ty and absolute discretion to decide whether to prosecute a case ....’”) (quoting United States v. Nixon, 418 U.S. 683, 693 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974)). b. {65} In Kastigar, the United States Supreme Court held that a federal use immunity statute 5 , which compelled testimony notwithstanding a witness’s invocation of Fifth Amendment privilege, survived constitutional scrutiny due to sufficient safeguards against th

1998See generally United States v. Alessio, 528 F.2d 1079, 1081 (9th Cir.1976) (“It has long been recognized that the Executive Branch of government ‘has exclusive authori ty and absolute discretion to decide whether to prosecute a case ....’”) (quoting United States v. Nixon, 418 U.S. 683, 693 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974)). b. {65} In Kastigar, the United States Supreme Court held that a federal use immunity statute 5 , which compelled testimony notwithstanding a witness’s invocation of Fifth Amendment privilege, survived constitutional scrutiny due to sufficient safeguards against th

2012See Javier M., 15 2001-NMSC-030, ¶ 19 (“During such investigatory detentions, the detainee is not 16 obliged to respond and, therefore, there is no violation of the privilege against self- 17 incrimination.”).

2008Id.

2020The potential for Defendant having objects on his person that threatened officer safety “outweigh[ed] the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Quarles, 467 U.S. at 657 (concluding that the need for answers may outweigh the prophylactic rule). {36} In Quarles, a woman approached two officers on patrol, told them that a man with a gun had just raped her, and gave them a description of the man.

2020See Quarles, 467 U.S. at 659-60 (admitting both the defendant’s response to an officer’s question asked before giving Miranda warnings and the physical evidence); see also id. at 667-72 (O’Connor, J., concurring in the judgment in part and dissenting in part) (reasoning that suppression of the physical evidence is not proper and observing that “whatever case can be made for suppression [of statements made during custodial interrogation without Fifth Amendment instruction] evaporates when the statements themselves are not admitted”). {43} As the ultimate arbiter of the New Mexico Constitution,

2014We find that his testimony was not compelled in violation of his Fifth 13 Amendment rights. 14 {12} Defendant’s reliance on Simmons v. United States, 390 U.S. 377 (1968), and 15 State v. Aragon, 1999-NMCA-060 , 127 N.M. 393 , 981 P.2d 1211 , is misplaced. 16 Simmons established the Fifth Amendment privilege to testify to establish standing for 17 Fourth Amendment suppression purposes without the testimony being later used by 18 the State as evidence against the defendant unless the defendant chose to testify once 19 again at trial. 390 U.S. at 390-91 .

2014We find that his testimony was not compelled in violation of his Fifth 13 Amendment rights. 14 {12} Defendant’s reliance on Simmons v. United States, 390 U.S. 377 (1968), and 15 State v. Aragon, 1999-NMCA-060 , 127 N.M. 393 , 981 P.2d 1211 , is misplaced. 16 Simmons established the Fifth Amendment privilege to testify to establish standing for 17 Fourth Amendment suppression purposes without the testimony being later used by 18 the State as evidence against the defendant unless the defendant chose to testify once 19 again at trial. 390 U.S. at 390-91 .

2011We believe these facts adequately establish that Child's age and experience were such that he was mature enough and experienced enough to understand the nature of his rights and the consequences of his decision to waive those rights. {20} As for Child's assertion that he did not know what weight his confession would be given as evidence against him, "[t]he Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." Colorado v. Spring, 479 U.S. 564, 574 , 107 S.Ct. 851 , 93 L.Ed.2d 954 (1987).

2011We believe these facts adequately establish that Child's age and experience were such that he was mature enough and experienced enough to understand the nature of his rights and the consequences of his decision to waive those rights. {20} As for Child's assertion that he did not know what weight his confession would be given as evidence against him, "[t]he Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." Colorado v. Spring, 479 U.S. 564, 574 , 107 S.Ct. 851 , 93 L.Ed.2d 954 (1987).

2025See Costillo, 2020-NMCA-051, ¶¶ 11, 14 (holding that the defendant demonstrated his intent not to speak where he clearly stated that he did not wish to discuss the topic on which he was being questioned and continually asked to stop the interview). {8} Separately, Defendant also asserts that the prosecutor “primed the jury to expect a statement from [Defendant] and to consider his silence” when, during opening, the prosecutor stated to the jury, “[Y]ou heard [defense counsel] say that this is the place where people who are not guilty come to say that they’re not guilty.” Defense counsel did no

2024Cf. Sena, 2020-NMSC-011, ¶ 18 (concluding defendant’s right to fair trial was compromised when prosecutor made comment inviting jury to draw adverse inference from defendant exercising his Fifth Amendment privilege not to testify). {29} The challenged comment was isolated and, as Defendant concedes, brief.

2020That question has remained open since Jenkins, as evinced by the division among lower courts considering whether the Constitution protects prearrest, pre-Miranda invocations of silence from substantive evidentiary use. 3 3See United States v. Okatan, 728 F.3d 111, 116-17, 119-20 (2d Cir. 2013) (holding the prosecution was not permitted to use the driver’s prearrest invocation or his subsequent silence as part of “its case in chief as substantive evidence of guilt”); Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000) (holding the prosecution was barred from using the defendant’s prearrest statem