Fifth Amendment privilege in Pennsylvania

2023Our Supreme Court has repeatedly stated that: in Miranda, the United States Supreme Court determined that in order to protect the Fifth Amendment privilege against self- incrimination from the inherently compelling pressures of custodial interrogation, “if an individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. at 473 [].

2023Our Supreme Court has repeatedly stated that: in Miranda, the United States Supreme Court determined that in order to protect the Fifth Amendment privilege against self- incrimination from the inherently compelling pressures of custodial interrogation, “if an individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. at 473 [].

2025Our Supreme Court has acknowledged that “most laymen” interpret the assertion of the right to silence not as a declaration of innocence but rather “as a badge of guilt.” Commonwealth v. Turner, 454 A.2d 537, 539 (Pa. 1982) (“most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt”) (quoting Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968)).

2025Our Supreme Court has acknowledged that “most laymen” interpret the assertion of the right to silence not as a declaration of innocence but rather “as a badge of guilt.” Commonwealth v. Turner, 454 A.2d 537, 539 (Pa. 1982) (“most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt”) (quoting Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968)).

2025Our Supreme Court has acknowledged that “most laymen” interpret the assertion of the right to silence not as a declaration of innocence but rather “as a badge of guilt.” Commonwealth v. Turner, 454 A.2d 537, 539 (Pa. 1982) (“most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt”) (quoting Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968)).

2025Our Supreme Court has acknowledged that “most laymen” interpret the assertion of the right to silence not as a declaration of innocence but rather “as a badge of guilt.” Commonwealth v. Turner, 454 A.2d 537, 539 (Pa. 1982) (“most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt”) (quoting Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968)).

2023(See id. at 21-22.) Oriented properly as a post-arrest case, he claims it becomes “impossible” here “to say beyond a reasonable doubt that the error did not affect the [jury’s] deliberations.” (Id. at 24.) “[M]ost laymen,” Rivera observes, “view an assertion of the Fifth Amendment privilege as a badge of guilt.” (Id. at 26 (quoting Commonwealth v. Haideman, 296 A.2d 765, 767 (Pa. 1972)).) For this and other reasons, he maintains that “an unbroken line of state and federal precedent” protects post-arrest silence and that the “Pennsylvania Constitution provides greater protection tha[n] the [Uni

2023(See id. at 21-22.) Oriented properly as a post-arrest case, he claims it becomes “impossible” here “to say beyond a reasonable doubt that the error did not affect the [jury’s] deliberations.” (Id. at 24.) “[M]ost laymen,” Rivera observes, “view an assertion of the Fifth Amendment privilege as a badge of guilt.” (Id. at 26 (quoting Commonwealth v. Haideman, 296 A.2d 765, 767 (Pa. 1972)).) For this and other reasons, he maintains that “an unbroken line of state and federal precedent” protects post-arrest silence and that the “Pennsylvania Constitution provides greater protection tha[n] the [Uni

2021We consider this claim mindful of the following. [W]e recognize that a claim of ineffective assistance grounded in trial counsel’s failure to object to a prosecutor’s conduct “may succeed when the petitioner demonstrates that the prosecutor’s actions violated a constitutionally or statutorily protected right, such as the Fifth Amendment privilege against compulsory self- incrimination or the Sixth Amendment right to a fair trial, or a -6- J-S23044-21 constitutional interest such as due process.” Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009) (quoting Commonwealth v. Tedford, 960 A.2d 1, 29

2021We consider this claim mindful of the following. [W]e recognize that a claim of ineffective assistance grounded in trial counsel’s failure to object to a prosecutor’s conduct “may succeed when the petitioner demonstrates that the prosecutor’s actions violated a constitutionally or statutorily protected right, such as the Fifth Amendment privilege against compulsory self- incrimination or the Sixth Amendment right to a fair trial, or a -6- J-S23044-21 constitutional interest such as due process.” Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009) (quoting Commonwealth v. Tedford, 960 A.2d 1, 29

2021This fact further reinforces our determination that the jury’s verdict of death was based upon its weighing of the aggravating and mitigating factors rather than upon any “non-statutory aggravator.” [J-65-2020] - 30 A claim of ineffective assistance grounded in counsel’s failure to object to a prosecutor’s comments “may succeed when the petitioner demonstrates that the prosecutor’s comments violated a constitutionally or statutorily protected right, such as the Fifth Amendment privilege against compulsory self- incrimination or the Sixth Amendment right to a fair trial, or a constitutional int

2021This fact further reinforces our determination that the jury’s verdict of death was based upon its weighing of the aggravating and mitigating factors rather than upon any “non-statutory aggravator.” [J-65-2020] - 30 A claim of ineffective assistance grounded in counsel’s failure to object to a prosecutor’s comments “may succeed when the petitioner demonstrates that the prosecutor’s comments violated a constitutionally or statutorily protected right, such as the Fifth Amendment privilege against compulsory self- incrimination or the Sixth Amendment right to a fair trial, or a constitutional int

2020“The Fifth Amendment privilege is not self-executing, and answers are generally not considered compelled ‘within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of -8- J-A22036-20 the privilege.’” Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012) (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)).

2020“The Fifth Amendment privilege is not self-executing, and answers are generally not considered compelled ‘within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of -8- J-A22036-20 the privilege.’” Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012) (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)).

2011Moreover, the Fifth Amendment privilege focuses not on the "type of proceeding," but rather, "upon the nature of the statement or admission and the exposure which it invites." Estelle, 451 U.S. at 462 , 101 S.Ct. 1866 (citation omitted).

2011Moreover, the Fifth Amendment privilege focuses not on the "type of proceeding," but rather, "upon the nature of the statement or admission and the exposure which it invites." Estelle, 451 U.S. at 462 , 101 S.Ct. 1866 (citation omitted).

2026Similarly, Pennsylvania courts recognize that the “Fifth Amendment privilege is not self-executing, and answers are generally not considered compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege.” Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012).

2020“The Fifth Amendment privilege is not self-executing, and answers are generally not considered compelled ‘within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of -8- J-A22036-20 the privilege.’” Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012) (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)).

2025See Commonwealth v Turner, 454 A.2d 537, 539-540 ( Pa. 1982) ("Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related [his version of events] to the police at the time of arrest when in fact he remained silent"); Con:monivealtk v Copenhefer, 719 A.2d 242, 251 (Pa. 1998) ("[W]here aprosecutor's reference to adefendant's silence is afair response to aclaim made by defendant or his counsel at trial, there is no violation of the Fifth Amendment privilege against self-incrimination").

2025See Commonwealth v Turner, 454 A.2d 537, 539-540 ( Pa. 1982) ("Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related [his version of events] to the police at the time of arrest when in fact he remained silent"); Con:monivealtk v Copenhefer, 719 A.2d 242, 251 (Pa. 1998) ("[W]here aprosecutor's reference to adefendant's silence is afair response to aclaim made by defendant or his counsel at trial, there is no violation of the Fifth Amendment privilege against self-incrimination").

2019See also Commonwealth v. Malloy, 856 A.2d 767, 778 (Pa. 2004) (concluding that the appellant had waived his claim of a Fifth Amendment violation because that claim was not the “particular” theory advanced at his suppression hearing); Commonwealth v. Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (reiterating that “failure to raise a contemporaneous objection to the evidence at trial waives that claim on appeal”) (citation omitted); Pa.R.E. 103(a) (“A party may claim error in a ruling to admit or exclude only [] if the ruling admits evidence, a party, on the record[,] makes a timely objection . . . an

2019See also Commonwealth v. Malloy, 856 A.2d 767, 778 (Pa. 2004) (concluding that the appellant had waived his claim of a Fifth Amendment violation because that claim was not the “particular” theory advanced at his suppression hearing); Commonwealth v. Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (reiterating that “failure to raise a contemporaneous objection to the evidence at trial waives that claim on appeal”) (citation omitted); Pa.R.E. 103(a) (“A party may claim error in a ruling to admit or exclude only [] if the ruling admits evidence, a party, on the record[,] makes a timely objection . . . an

2019See Thompson v. Keohane, 516 U.S. 99, 104 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995) (citing Miranda v. Arizona, 384 U.S. 436, 444 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

2019See Thompson v. Keohane, 516 U.S. 99, 104 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995) (citing Miranda v. Arizona, 384 U.S. 436, 444 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

2015This prohibition not only permits an individual to refuse to testify against himself when he is a defendant but also “ ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ” Murphy, at 426, 104 S.Ct. 1136 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 , 94 S.Ct. 316 , 38 L.Ed.2d 274 (1973)). 8 The Fifth Amendment privilege against self-incrimination is generally not self-executing, and ordinarily an individual must assert the privilege for subsequent st

2015This prohibition not only permits an individual to refuse to testify against himself when he is a defendant but also “ ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ” Murphy, at 426, 104 S.Ct. 1136 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 , 94 S.Ct. 316 , 38 L.Ed.2d 274 (1973)). 8 The Fifth Amendment privilege against self-incrimination is generally not self-executing, and ordinarily an individual must assert the privilege for subsequent st

2015The United States Supreme Court has also explained that the Fifth Amendment privilege applies only to testimony, as follows: The Self-Incrimination Clause of the Fifth Amendment provides that no “person ... shall be compelled in any criminal case to be a witness against himself.” Although the text does not delineate the ways in which a person might be made a “witness against himself,” cf. Schmerber v. California, 384 U.S. 757, 761-762, n. 6 , 86 S.Ct. 1826, 1831, n. 6 , 16 L.Ed.2d 908 (1966), we have long held that the privilege does not protect a suspect from being compelled by the State to p

2015The United States Supreme Court has also explained that the Fifth Amendment privilege applies only to testimony, as follows: The Self-Incrimination Clause of the Fifth Amendment provides that no “person ... shall be compelled in any criminal case to be a witness against himself.” Although the text does not delineate the ways in which a person might be made a “witness against himself,” cf. Schmerber v. California, 384 U.S. 757, 761-762, n. 6 , 86 S.Ct. 1826, 1831, n. 6 , 16 L.Ed.2d 908 (1966), we have long held that the privilege does not protect a suspect from being compelled by the State to p

2018As such, "the prosecutor's criticism of [defendant]'s failure to express remorse penalized the assertion of his Fifth Amendment privilege against self-incrimination, in violation of the rule in Griffin v. California ." Id. at 1545 . *190 In rejecting Brown's claim in this case, the PCRA court found Lesko to be factually distinguishable, stating as follows: Unlike Lesko , the prosecutor's questioning of [Brown's] grandfather was not a comment on [Brown's] failure to testify regarding his remorse.

2011At the resentencing, however, the prosecutor's cross-examination and commentary addressed only the credibility of the testimony that Lesko actually provided at that proceeding; and the Third Circuit itself had specifically noted that Lesko could not "claim a Fifth Amendment privilege against cross-examination or prosecutorial comment on matters reasonably related to his credibility or the subject matter of his testimony." Lesko, 719 A.2d at 222 ( quoting Lesko v. Lehman, 925 F.2d at 1542 ).

2020In Robinson, the Supreme Court denied a Fifth Amendment challenge to the prosecutor’s fleeting comment in summation that the defendant “could have taken the stand and explained [his side of the story] to you.” Robinson, 485 U.S. at 26 .

2020In Robinson, the Supreme Court denied a Fifth Amendment challenge to the prosecutor’s fleeting comment in summation that the defendant “could have taken the stand and explained [his side of the story] to you.” Robinson, 485 U.S. at 26 .

2020See Malloy v. Hogan, 378 U.S. 1, 7 (1964) (holding that the Fifth Amendment privilege is protected against abridgment by the States via the Due Process Clause of the Fourteenth Amendment).

2020See Malloy v. Hogan, 378 U.S. 1, 7 (1964) (holding that the Fifth Amendment privilege is protected against abridgment by the States via the Due Process Clause of the Fourteenth Amendment).

2014The Court has also discussed a witness’ invocation of his privilege against self-incrimination as follows: The standard against which a trial judge must determine whether a witness may properly invoke a claimed Fifth Amendment privilege was set forth in Commonwealth v. Carrera, 424 Pa. 551 , 227 A.2d 627 (1967).

2014The Court has also discussed a witness’ invocation of his privilege against self-incrimination as follows: The standard against which a trial judge must determine whether a witness may properly invoke a claimed Fifth Amendment privilege was set forth in Commonwealth v. Carrera, 424 Pa. 551 , 227 A.2d 627 (1967).

2020See id.; see also Commonwealth v. McGrogan, 568 A.2d 924, 929 (Pa. 1990) (“Where other evidence tends to implicate the witness in criminal activity, the witness may have justification for invoking his Fifth Amendment privilege to prevent being harmed by his own words.”).

1993However, we continued by stating that: “Where other evidence tends to implicate the witness in criminal activity, the witness may have justification for *400 invoking his Fifth Amendment privilege to prevent being harmed by his own words.” Id.

2020In fact, when called as on cross-examination, Dr. Silaban asserted his Fifth Amendment right against self- incrimination to all questions except those asking whether he was licensed by the Board and whether his license was then under temporary suspension, thereby establishing an adverse inference that his testimony would not be favorable to him.15 Consequently, Kushner is inapposite. 15 The Pennsylvania Supreme Court has explained: In Baxter v. Palmigiano, 425 U.S. 308 . . . (1976)[,] the [United States] Supreme Court addressed the constitutional concern implicated by the evidentiary use of on

2020In fact, when called as on cross-examination, Dr. Silaban asserted his Fifth Amendment right against self- incrimination to all questions except those asking whether he was licensed by the Board and whether his license was then under temporary suspension, thereby establishing an adverse inference that his testimony would not be favorable to him.15 Consequently, Kushner is inapposite. 15 The Pennsylvania Supreme Court has explained: In Baxter v. Palmigiano, 425 U.S. 308 . . . (1976)[,] the [United States] Supreme Court addressed the constitutional concern implicated by the evidentiary use of on

2015While Appellants are not required to provide potentially incriminating answers to the questions before asserting their Fifth Amendment privilege, they must demonstrate “reasonable cause to apprehend danger[.]” Hoffman, 341 U.S. at 486, 71 S.Ct. 814 .

2015While Appellants are not required to provide potentially incriminating answers to the questions before asserting their Fifth Amendment privilege, they must demonstrate “reasonable cause to apprehend danger[.]” Hoffman, 341 U.S. at 486, 71 S.Ct. 814 .