Scope of Information protected by the 5th amendment Flashcards
What type of evidence is protected by the 5th amendment?
Only testimonial evidence.
Schmerber v. California (SCOTUS 1966)
This case held that blood sample evidence was physical, not testimonial, and was therefore not protected by the 5th amendment.
This case also indicated that evidence is only testimonial if it presents the cruel trilemma. Because physical evidence cannot be true or false, a person does not risk perjury, so they cannot face the cruel trilemma.
Counter-argument: blood analysis is communicative in nature. Relying on the substance of what you compel them to say, is no different than relying on the substance of what you compel them do. Plus there are circumstances in which people can falsify physical evidence and possibly face obstruction of justice penalties.
Facts: the defendant got into a car accident and was taken to the hospital where the police instructed the doctor to provide them with a blood sample from the defendant. They used the blood sample to prove that the defendant had been driving under the influence.
Pennsylvania v. Muniz (SCOTUS 1990)
This case held that when a defendant is compelled to answer an incriminating question, the contents of their answer is not admissible but the manner of their speech is.
Facts: the defendant was pulled over and arrested for drunk driving. The police did not read him his Miranda warnings. They asked him the date of his 6th birthday and he did not know. The Court ruled that the contents of his answer could not be used against him because he faced the cruel trilemma. However, the manner in which he answered the question could be used against him.
What are some examples of physical, non-testimonial evidence?
Blood samples, breath samples, sound of someone’s voice, actions, being measured (think qualities at a line up), fingerprinting, photographs
Boyd v. United States (SCOTUS 1886)
This case held that subpoenaing someone’s private books and papers can violate the 5th amendment when they contain incriminating information.
Counter argument: the 4th amendment protects privacy, not the 5th. O’Connor: this is a rule in search of a rationale.
Fisher v. U.S. (SCOTUS 1976)
This case held that incriminating documents that are voluntarily prepared are not protected by the 5th amendment because there is no compulsion AND that there may be instances in which there is Act of Production Privilege.
Note: this case did not overrule Boyd!!
Act of Production Privilege w/ Examples
In certain instances, subpoenaed documents can be protected by the 5th amendment when the act of producing them results provides incriminating, testimonial evidence. This is the case when, by producing the documents the individual admits:
1. That the documents exist
2. That they have custody of the document
3. That the documents are authentic (documents cannot be admitted in court unless they are authenticated)
Examples:
It is incriminating for a business to have a second set of books.
It is incriminating for someone to turn over evidence they previously testified did not exist.
When can documents be protected under the 5th amendment?
- When they are private and contain incriminating information. Boyd
- When the act of production the documents is incriminating under the Act of Production Privilege
Is testimony from an expert protected by the 5th amendment?
No. Testimony by experts about information the defendant provided them are not protected under the 5th amendment, particularly when this is the only way for the government to rebut claims by the defense. Buchanan, Cheevers.
