Fifth Amendment privilege in Florida

2017As we explained in Ross: “The requirement of warnings and waiver of rights is a fundamental [sic] with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” [Miranda, 384 U.S.] at 476, 86 S.Ct. 1602 .

2017As we explained in Ross: “The requirement of warnings and waiver of rights is a fundamental [sic] with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” [Miranda, 384 U.S.] at 476, 86 S.Ct. 1602 .

2007Accordingly, “it is clear that the fifth amendment’s proscription of forced self-incrimination cannot be circumvented by the issuance of a ... protective order.” Andover Data Servs. v. Statistical Tabulating Corp., 876 F.2d 1080, 1083 (2d Cir.1989); see also Pillsburg Co. v. Conboy, 459 U.S. 248, 263-64 , 103 S.Ct. 608 , 74 L.Ed.2d 430 (1983) (holding “that a deponent’s civil deposition testimony ... without duly authorized assurance of immunity at the time ... may not be compelled over a valid assertion of his Fifth Amendment privilege”) (footnote omitted).

2007Accordingly, “it is clear that the fifth amendment’s proscription of forced self-incrimination cannot be circumvented by the issuance of a ... protective order.” Andover Data Servs. v. Statistical Tabulating Corp., 876 F.2d 1080, 1083 (2d Cir.1989); see also Pillsburg Co. v. Conboy, 459 U.S. 248, 263-64 , 103 S.Ct. 608 , 74 L.Ed.2d 430 (1983) (holding “that a deponent’s civil deposition testimony ... without duly authorized assurance of immunity at the time ... may not be compelled over a valid assertion of his Fifth Amendment privilege”) (footnote omitted).

2012In Hiibel v. Sixth Judicial District Court, the United States Supreme Court held that the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” 542 U.S. 177, 190 , 124 S.Ct. 2451 , 159 L.Ed.2d 292 (2004) (quoting Kastigar v. United States, 406 U.S. 441, 445 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972)).

2012In Hiibel v. Sixth Judicial District Court, the United States Supreme Court held that the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” 542 U.S. 177, 190 , 124 S.Ct. 2451 , 159 L.Ed.2d 292 (2004) (quoting Kastigar v. United States, 406 U.S. 441, 445 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972)).

2016THE LEGAL BACKGROUND “In Miranda [v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) ], the United States Supreme Court established a procedural safeguard to protect an individual’s fifth amendment privilege against compelled self-incrimination from the coercive pressures of custodial interrogation.” Caso v. State, 524 So.2d 422, 423 (Fla.1988).

2005The Florida Supreme Court has explained that Miranda established a procedural safeguard “to protect an individual’s fifth amendment privilege against compelled self-incrimination from the coercive pressures of custodial interrogation.” See Caso v. State, 524 So.2d 422, 423 (Fla.), cert. denied, 488 U.S. 870 , 109 S.Ct. 178 , 102 L.Ed.2d 147 (1988).

2004In Brackin v. Boles, 452 So.2d 540, 544 (Fla.1984), the court held that this statute provides immunity only to “such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2) [to report an accident]” so as to avoid a Fifth Amendment violation.

2004In Brackin v. Boles, 452 So.2d 540, 544 (Fla.1984), the court held that this statute provides immunity only to “such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2) [to report an accident]” so as to avoid a Fifth Amendment violation.

2004“Certiorari will lie to review an order compelling discovery in a civil case over an objection that the order violates the Fifth Amendment privilege against self-incrimination.” Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003) (citing Magid v. Winter, 654 So.2d 1037 (Fla. 4th DCA 1995)).

2004“Certiorari will lie to review an order compelling discovery in a civil case over an objection that the order violates the Fifth Amendment privilege against self-incrimination.” Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003) (citing Magid v. Winter, 654 So.2d 1037 (Fla. 4th DCA 1995)).

2016See Quarles, 467 U.S. at 651, 657 , 104 S.Ct. 2626 (“[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”).

2016See Quarles, 467 U.S. at 651, 657 , 104 S.Ct. 2626 (“[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”).

2012See Simpson v. State, 418 So.2d 984, 984-85 (Fla.1982) (quoting Jones v. State, 200 So.2d 574, 576 (Fla. 3d DCA 1967)); see also DiGuilio, 491 So.2d at 1131 .

1982In the case of Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967), the district court quoted from Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), as follows: *985 "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.

2008On appeal, the court commented: even assuming the testimony was improper comment on defendant's silence, we find that this case falls within the exceptions announced by the supreme court in Clark v. State, 363 So.2d 331 (Fla.1978), holding that no error occurs when defense counsel comments upon or elicits testimony concerning the defendant's exercise of his Fifth Amendment privilege[.] *1250 Id. ("Since the objectionable testimony was clearly responsive to the line of questions being asked, and was elicited by defense counsel on cross-examination, it does not constitute reversible error.").

2008On appeal, the court commented: even assuming the testimony was improper comment on defendant's silence, we find that this case falls within the exceptions announced by the supreme court in Clark v. State, 363 So.2d 331 (Fla.1978), holding that no error occurs when defense counsel comments upon or elicits testimony concerning the defendant's exercise of his Fifth Amendment privilege[.] *1250 Id. ("Since the objectionable testimony was clearly responsive to the line of questions being asked, and was elicited by defense counsel on cross-examination, it does not constitute reversible error.").

2018See also Appel v. Bard, 154 So. 3d 1227, 1228 (Fla. 4th DCA 2015) (granting certiorari to review order compelling answers to deposition questions and overruling Fifth Amendment privilege objections); cf. Boyle v. Buck, 858 So. 2d 391, 392 (Fla. 4th DCA 2003).

2015“Certiorari will lie to review an order compelling discovery in a civil case over an objection that the order violates the Fifth Amendment privilege against self-incrimination.” Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003).

2016V, U.S. Const. This privilege against self-incrimination “protects a person only against being incriminated by his own compelled testimonial communications.” Doe v. United States, 487 U.S. 201, 207 , 108 S.Ct. 2341 , 101 L.Ed.2d 184 (1988) (quoting Fisher v. United States, 425 U.S. 391, 409 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976)); see also Kessler v. State, 991 So.2d 1015, 1021 (Fla. 4th DCA 2008) (“The Fifth Amendment privilege protects an accused from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature,” (citing Sc

2016V, U.S. Const. This privilege against self-incrimination “protects a person only against being incriminated by his own compelled testimonial communications.” Doe v. United States, 487 U.S. 201, 207 , 108 S.Ct. 2341 , 101 L.Ed.2d 184 (1988) (quoting Fisher v. United States, 425 U.S. 391, 409 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976)); see also Kessler v. State, 991 So.2d 1015, 1021 (Fla. 4th DCA 2008) (“The Fifth Amendment privilege protects an accused from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature,” (citing Sc

2020See Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980) (holding a probationer may not validly invoke a Fifth Amendment privilege to refuse to answer questions at a probation violation hearing regarding non-criminal conduct alleged to constitute the violation of probation, and the court may infer a probationer’s refusal to answer questions as evidence of non- 15 compliance with the terms of his probation (citing State v. Heath, 343 So. 2d 13 (Fla. 1977))).

2020See Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980) (holding a probationer may not validly invoke a Fifth Amendment privilege to refuse to answer questions at a probation violation hearing regarding non-criminal conduct alleged to constitute the violation of probation, and the court may infer a probationer’s refusal to answer questions as evidence of non- 15 compliance with the terms of his probation (citing State v. Heath, 343 So. 2d 13 (Fla. 1977))).

1998It means, as we said in Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), the imposition of any sanction which makes assertion of the Fifth Amendment privilege `costly." Spevack v. Klein, 385 U.S. 511, 515 , 87 S.Ct. 625 , 17 L.Ed.2d 574 (1967).

1998It means, as we said in Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), the imposition of any sanction which makes assertion of the Fifth Amendment privilege `costly." Spevack v. Klein, 385 U.S. 511, 515 , 87 S.Ct. 625 , 17 L.Ed.2d 574 (1967).

2022Petitioner’s Initial Brief on the Merits at 27-28 (citing Doe v. United States, 487 U.S. 201, 215 (1988) to support its argument that passcode disclosure is not a “testimonial” communication and therefore is not protected by the Fifth Amendment); Petitioner’s Reply Brief on the Merits at 4 (citing Kastigar v. United States, 406 U.S. 441, 443-48 (1972), and United States v. Gecas, 120 F.3d 1419, 1428-29 (11th Cir. 1997), for the proposition that a criminal defendant may not invoke the Fifth Amendment before trial because the Fifth Amendment only protects a defendant during a “criminal case”); B

2022Petitioner’s Initial Brief on the Merits at 27-28 (citing Doe v. United States, 487 U.S. 201, 215 (1988) to support its argument that passcode disclosure is not a “testimonial” communication and therefore is not protected by the Fifth Amendment); Petitioner’s Reply Brief on the Merits at 4 (citing Kastigar v. United States, 406 U.S. 441, 443-48 (1972), and United States v. Gecas, 120 F.3d 1419, 1428-29 (11th Cir. 1997), for the proposition that a criminal defendant may not invoke the Fifth Amendment before trial because the Fifth Amendment only protects a defendant during a “criminal case”); B

1985DiGuilio v. State, 451 So.2d 487 (Fla. 5th DCA 1984); Smith v. State, 342 So.2d 990 (Fla. 3d DCA 1977); see also Harris v. State, 438 So.2d 787 (Fla.1983).

1985DiGuilio v. State, 451 So.2d 487 (Fla. 5th DCA 1984); Smith v. State, 342 So.2d 990 (Fla. 3d DCA 1977); see also Harris v. State, 438 So.2d 787 (Fla.1983).

2025The fifth amendment provides no immunity from cross-examination for a witness who elects to testify; it is not a “positive invitation to mutilate the truth a party offers to tell.” 13 Sule v. State, 968 So. 2d 99, 105 (Fla. 4th DCA 2007) (quoting Brown v. United States, 356 U.S. 148, 156 (1958)).

2007The fifth amendment provides no immunity from cross-examination for a witness who elects to testify; it is not a "positive invitation to mutilate the truth a party offers to tell." Brown v. United States, 356 U.S. 148, 156 , 78 S.Ct. 622, 627 , 2 L.Ed.2d 589 (1958).

2022V, U.S. Const. This includes “being forced to produce a password [which] is testimonial and can violate the Fifth Amendment privilege against compelled self-incrimination.” G.A.Q.L. v. State, 257 So. 3d 1058 , 1061–62 (Fla. 4th DCA 2018).

2022V, U.S. Const. This includes “being forced to produce a password [which] is testimonial and can violate the Fifth Amendment privilege against compelled self-incrimination.” G.A.Q.L. v. State, 257 So. 3d 1058 , 1061–62 (Fla. 4th DCA 2018).

2016V, U.S. Const. This privilege against self-incrimination “protects a person only against being incriminated by his own compelled testimonial communications.” Doe v. United States, 487 U.S. 201, 207 , 108 S.Ct. 2341 , 101 L.Ed.2d 184 (1988) (quoting Fisher v. United States, 425 U.S. 391, 409 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976)); see also Kessler v. State, 991 So.2d 1015, 1021 (Fla. 4th DCA 2008) (“The Fifth Amendment privilege protects an accused from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature,” (citing Sc

2016V, U.S. Const. This privilege against self-incrimination “protects a person only against being incriminated by his own compelled testimonial communications.” Doe v. United States, 487 U.S. 201, 207 , 108 S.Ct. 2341 , 101 L.Ed.2d 184 (1988) (quoting Fisher v. United States, 425 U.S. 391, 409 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976)); see also Kessler v. State, 991 So.2d 1015, 1021 (Fla. 4th DCA 2008) (“The Fifth Amendment privilege protects an accused from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature,” (citing Sc

2020See Fisher v. United States, 425 U.S. 391, 411 (1976) (holding the existence and location of papers requested in discovery were a foregone conclusion where the taxpayer’s compelled production of them “adds little or nothing to the sum total of the Government’s information,” and therefore “no constitutional rights are touched” and the Fifth Amendment does not bar compelled disclosure); Pollard, 287 So. 3d at 657.

2016V, U.S. Const. This privilege against self-incrimination “protects a person only against being incriminated by his own compelled testimonial communications.” Doe v. United States, 487 U.S. 201, 207 , 108 S.Ct. 2341 , 101 L.Ed.2d 184 (1988) (quoting Fisher v. United States, 425 U.S. 391, 409 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976)); see also Kessler v. State, 991 So.2d 1015, 1021 (Fla. 4th DCA 2008) (“The Fifth Amendment privilege protects an accused from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature,” (citing Sc

2020See, e.g., State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016) (noting that in order for witness to establish a proper invocation of the Fifth Amendment privilege, he must establish, inter alia, that he will be incriminated).

2020See, e.g., State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016) (noting that in order for witness to establish a proper invocation of the Fifth Amendment privilege, he must establish, inter alia, that he will be incriminated).

1982Appellant, citing Minor v. Minor, 240 So.2d 301 (Fla.1970) and Stockham v. Stockham, 168 So.2d 320 (Fla.1964), relies on the rule that a person initiating a judicial proceeding will not be allowed to carry on the litigation while at the same time invoking the Fifth Amendment privilege in order to shield herself from legitimate discovery procedures.

1982Appellant, citing Minor v. Minor, 240 So.2d 301 (Fla.1970) and Stockham v. Stockham, 168 So.2d 320 (Fla.1964), relies on the rule that a person initiating a judicial proceeding will not be allowed to carry on the litigation while at the same time invoking the Fifth Amendment privilege in order to shield herself from legitimate discovery procedures.

1987Compare Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975).

1987Compare Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975).

1992Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." Id.

1992Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." Id.

1998We then followed the lead of the second district in Delisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982), and held that "the trial court burdened the petitioner's assertion of the Fifth Amendment privilege without discerning whether the petitioner was entitled to invoke the privilege." 436 So.2d at 1101 .

1998We then followed the lead of the second district in Delisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982), and held that "the trial court burdened the petitioner's assertion of the Fifth Amendment privilege without discerning whether the petitioner was entitled to invoke the privilege." 436 So.2d at 1101 .

1982Appellant, citing Minor v. Minor, 240 So.2d 301 (Fla.1970) and Stockham v. Stockham, 168 So.2d 320 (Fla.1964), relies on the rule that a person initiating a judicial proceeding will not be allowed to carry on the litigation while at the same time invoking the Fifth Amendment privilege in order to shield herself from legitimate discovery procedures.

1982Appellant, citing Minor v. Minor, 240 So.2d 301 (Fla.1970) and Stockham v. Stockham, 168 So.2d 320 (Fla.1964), relies on the rule that a person initiating a judicial proceeding will not be allowed to carry on the litigation while at the same time invoking the Fifth Amendment privilege in order to shield herself from legitimate discovery procedures.