Student Speech: Part I

In light of recent appeals to the United States Supreme Court (J.S. v. Bethlehem Area School District, 807 A.2d 803, which the Court declined to address) now seems like a good time to discuss school speech. School speech provides an interesting contrast between constitutional freedoms and administrative reactions- especially interesting given the youth of the individuals involved and the idea that schools are somehow preparing students for the adult world.

To begin this post series on schools, let’s start with a basic history of the court’s reasoning(s) for abrogating school children’s rights.  The federal courts have held that a right is based on a legitimate expectation of protection.[1] The Supreme Court has consistently held that children have lesser expectations of protection and therefore hold lesser rights.[2] There are three doctrines generally offered by the Court to justify the diminishment of rights in schools: the in loco parentis doctrine, the minimally intrusive standard, and the educational mission doctrine.[3] The importance accorded to educational mission doctrine generally make is the most important justification for the court when analyzing student rights cases.

A.         The In Loco Parentis Doctrine

The in loco parentis doctrine is most often used to justify actions that would be appropriate had a parent taken them, like punishment for lewd speech, seizure of belongings, detainment of a student, or action taken to protect other students.[4] The idea is that a parent would not have to justify similar disciplinary actions to a court, and so the school is not required to either because it stands in the place of the parent.[5] In New Jersey v. TLO, the Court specifically rejected the in loco parentis doctrine as justification for abrogation of student rights.[6] However, while the courts’ stance is that the doctrine no longer applies, the doctrine is still implied in the educational mission and so still remains important to courts’ decisions.[7]

B.         The Minimally Intrusive Standard

The minimally intrusive standard began with Vernonia School District v. Acton and applies mainly to school searches.[8] The courts have said so long as the school administrators ensure the measures taken to search the child are minimally intrusive and the school has an important pedagogical concern for the invasion, it is sufficient to protect the interests of students.[9] Recent cases have called into question exactly what constitutes a minimally intrusive search.[10] This justification is not important for this topic, so it will not be analyzed in depth.

C.        The “Educational Mission” Doctrine

The Supreme Court has determined that schools must be able to carry out their educational mission in a safe and disruption-free environment.[11] Furthermore, the Court has indicated that the nature of schools is such that administrators must be able to act quickly and decisively prior to allowing a situation to reach a crisis level.[12] The educational mission diminishes rights of school children because it places the school in the position of determining what policies and rules are necessary to successfully educate the child.[13] This justification is mentioned in almost every case of school children’s constitutional rights and appears to be the most important justification for diminishing student rights from the Court’s view.[14] Although the educational mission certainly affects due process and the issue of probable cause, in this analysis I would like to focus on free speech.

1.         The Educational Mission Doctrine and Free Speech

The educational mission doctrine extends to curtailing free speech in schools as well.[15] The First Amendment has generally requires a strict scrutiny review by courts to ensure a narrow tailoring of laws restricting free speech.[16] Narrow tailoring requires that the law in question be closely restricted to the underlying compelling government interest.[17] But schools have been permitted by courts to lapse into various versions of the reasonableness test and the intermediate scrutiny test.[18] Under intermediate scrutiny, a court upholds the regulation in question if it advances some important government interest and is logically tailored to that interest.[19]

Tinker v. Des Moines determined that school children held comprehensive First Amendment rights even when considering the “special characteristics of the school environment.”[20] The comprehensive strict scrutiny protection recognized in Tinker has not been applied by federal courts since the decision was made.[21] However, recent cases have distinguished various types of speech from that protected in Tinker.[22] Instead, the test for First Amendment protection regarding the rights of students—in or out of school—has slipped to the lower intermediate scrutiny standard.[23]

Next Monday the post will begin an analysis of how these doctrines have affected the past court decisions. Again, I will focus generally on federal rulings.

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[1] Safford Unified Sch. Dist. v. Redding, 129 S. Ct. 2633, 2641 (2009); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); New Jersey v. TLO, 469 U.S. 325, 338 (1985); Phanuef v. Fraikin, 448 F.3d 591, 595–96 (2d Cir. 2006);  Wofford v. Evans, 390 F.3d 318, 327 (4th Cir. 2004)  390 F.3d at 327.

[2] See Vernonia, 515 U.S. at 654; TLO, 469 U.S. at 338.

[3] Redding, 129 S. Ct. at 2641 (holding that a school must be minimally intrusive when searching a child); Vernonia, 515 U.S. at 654 (determining that schools sometimes must act as a parent would); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (finding that a school stands in the special position of teaching young people what is and is not appropriate, as well as educating them, and this must be accounted for).

[4] Redding, 129 S. Ct. at 2656; TLO, 469 U.S. at 337; see also Wofford, 390 F.3d at 327; Jacob Tabor, Student’s First Amendment Rights in the Age of the Internet: Off Campus Cyber-Speech and School Regulation, 50 B.C. L. REV. 561, 573 (2009).

[5] Redding, 129 S. Ct. at 2639; TLO, 469 U.S. at 337; see also Wofford, 390 F.3d at 327.

[6] 469 U.S. 325, 33–37 (1985); see also Vernonia, 515 U.S. at 655.

[7] See Morse v. Fredrick, 551 U.S. 393, 406 (2007) (finding that schools had a duty to prevent advocation of illegal drug use); TLO, 469 U.S. at  341–42 (1985) (holding that school officials, when they search students, act in as state officials and not as surrogates for the parents); Ingraham v. Wright, 430 U.S. 651, 672, 682 (1977) (finding that the concept of “parental delegation” is not “entirely consonant” with modern education); Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that although the power of schools to make and enforce rules is very broad, the school must still develop fundamentally fair procedures to determine guilt before meting out punishment); Doninger v. Niehoff, 514 F. Supp. 2d 199, 217 (D. Conn. 2007) (finding that a school has a duty to prohibit the use of vulgar terms and to encourage values of civility); Poling v. Murphy, 872 F.2d 757, 763 (6th Cir. 1989) (finding that a school may punish speech when it is insulting or derogatory towards school officials).

[8] See 515 U.S. 646, 658 (1995); e.g. Redding, 129 S. Ct. at 2641 (holding that a student may be searched upon reasonable suspicion of illegal activity so long as it is done in the minimally intrusive manner).

[9] See Vernonia, 515 U.S. at 655; Phanuef v. Fraikin, 448 F.3d 591, 595 (2d Cir. 2006); Sara Young, PIAC (Pee in a Cup)—The New Standardized Testing for Student Athletes, 10 BYU EDUC. & L.J. 163, 174 (2010).

[10] Redding, 129 S. Ct. at 2641 (stating that a “rule of reasonableness” must be used in searching students). See generally Miller v. Mitchell, 598 F.3d 139 (3rd Cir. 2010) (discussing the role of prosecutors in search of cellular phones confiscated from minor students while in school).

[11] Vernonia, 515 U.S. at 656 (finding that the rights of a child must be of an appropriate nature for a school environment); Goss, 419 U.S. at 582–83, 595 (finding that maintaining security and order requires allowing flexibility for school administrators that would not be permissible in adult society).

[12] Amanda L. Dixon, Random Drug Testing in Secondary Schools—Where Does Georgia Stand?, 3 J. MARSHALL L. REV. 357, 374–75 (2010).

[13] Vernonia, 515 U.S. at 656 (finding that the rights of a child must be of an appropriate nature for a school environment).

[14] Vernonia, 515 U. S. at 656; TLO, 469 U.S. at 338–39; Goss, 419 U.S. at 582–83, 595 (1975). See Tinker v. Independent Community Sch. Dist., 393 U.S. 503, 508 (1969); Phanuef, 448 F.3d at 595–96; Wofford, 390 F.3d at 327.

[15] See Morse, 551 U.S. at 397; Fraser, 478 U.S. at 683.

[16] Cent. Hudson Gas & Electric Corp. v. Pub. Servs. Comm. of N.Y., 447 U.S. 557, 565–66 (1980).

[17] Jeffery M. Shaman, Cracks in the Structure: The Coming Breakdown of the Levels of Scrutiny, 45 OHIO ST. L.J. 161, 162 (1984).

[18] See Morse, 551 U.S. at 408; Fraser, 478 U.S. at 683.

[19] See  James Ianelli, Punishment and Student Speech: Straining the Reach of the First Amendment, 33 HARV. J. L. & PUB. POL’Y 885, 893 (2010); Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL. L. REV. 783, 792 (2007).

[20] Tinker, 393 U.S. at 506.

[21] See M.A.L. ex rel M.L. v. Kinsland, 543 F.3d 841, 849 (6th Cir. 2008) (finding that “contrary to [plaintiff's] arguments, this case is not governed by the heightened ‘material and substantial interference’ standard articulated by the Supreme Court in Tinker”); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 429 n.24 (2008) (noting “Tinker did not equate its ‘substantial interference’ test with the ‘strict scrutiny test’ that is now commonly used in First Amendment cases ”); Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 443 (5th Cir. 2001) (describing Tinker as a higher standard).

[22] See Kinsland, 543 F.3d at 849  (finding that “contrary to [plaintiff’s] arguments, this case is not governed by the heightened ‘material and substantial interference’ standard articulated by the Supreme Court in Tinker”); Jacobs, 526 F.3d at 429 n.24 (noting that “Tinker did not equate its ‘substantial interference’ test with the ‘strict scrutiny test’ that is now commonly used in First Amendment cases”); Ianelli, supra note 19, at 890–93 (determining that a much used form of scrutiny regarding student speech is intermediate scrutiny); Geoffrey A. Starks, Tinker’s Tenure in the School Setting: A Case for Applying O’Brien to Content Neutral Regulations, 120 YALE L. J. ONLINE 65, 67 (2010).

[23] Morse, 551 U.S. at 397; Fraser, 478 U.S. at 683.

An Analysis of U.S.v. Jones

Here's an interesting, and very well thought-out analysis of the much publicized Jones case, regarding GPS tracking on vehicles, and whether that is a search.

http://www.scotusblog.com/2012/01/why-jones-is-still-less-of-a-pro-privacy-decision-than-most-thought/

Interesting Comments on Agency Law

This blog post by Amanda Frost over at SCOTUS blog coincides nicely with yesterday's blog post.

http://www.scotusblog.com/2012/01/academic-round-up-83/

Sackett v. EPA: An Exploration of Administrative Law

The Sacketts are a couple from Idaho, who purchased some property in a subdivision with the intention of building their dream home; instead they got into a nightmare of a situation. Three days after workers began clearing the property to begin work, the Environmental Protection agency (EPA) and the Army Corps of Engineers arrived on the property. They asserted that before any work was done the Sacketts needed a permit to fill in the wetlands.  It was not until seven months and an estimated forty million dollar bill, that the EPA sent a compliance order, without any judicial determination or fact finding hearing. The Sackets wanted to appeal immediately, but the EPA claimed that the Sacketts had no right to sue them, and that they would have to wait until the agency brought a court action.

The Sacketts took the issue to court anyway; and then appealed it all the way up to the United States Supreme Court on January 9, 2012. The Sacketts and the EPA asked the court whether an administrative agency may issue an order, without other process or an opportunity to be heard, requiring certain actions and seek judicial enforcement of the order. They also asked whether the aggrieved party may challenge the order before the agency seeks judicial enforcement. The Sacketts asserted that to allow such actions would violate due process. The EPA asserted that it had the right under the Clean Water Act to act without hearing and that the order could not be challenged.

As it was put at this blog, the argument became “a somewhat dull exploration of administrative law.” Fair warning, this post is (hopefully) a somewhat less dull exploration of administrative law and the Administrative Procedure Act (5 U.S.C. 551 et seq) using Sackett as a method to explore the issues.

Adjudication vs. Rulemaking

The APA divides administrative agencies actions into 2 categories: rulemaking and adjudication. Rulemaking is when the agency makes a determination that some issue within its government needs to be better controlled. A rule is a statement of general applicability:

No person may build on a wetland without taking steps to protect the wetland.

Adjudication is a fact specific determination that affects only one person at the time of making although often sets precedent for future issues with similar facts:

The Sacketts cleared land on a wetland, they should be fined and required to return the property to its original state. 

Adjudication is much like court determinations, and rulemaking is more like congressional actions. Adjudication can be broken into two different types: formal and informal.

Both adjudication and rule making are held to certain due process standards; here, I am interested only in the adjudicative standards. Rulemaking often has such elaborate procedures that it would never fit in a blog post. Challenging the rule, now that's a story we might actually get to. 

With a formal adjudication there is a trial-like procedure. There is a hearing and fact presentation, in front of one or more administrative law judges. The individual compelled to appear is entitled to have counsel. Both sides present arguments and an order is given by the adjudicator. In informal proceedings an order is issued based only on inspections, conferences, negotiations, and official’s determinations of a violation of the rules.  The Sackett case, in part, looks at informal adjudication and whether it provided sufficient due process.

The EPA asserted the Sacketts had no right to appeal the order without the EPA seeking compliance through a suit. A federal appeals court found that they could not make a decision about the EPA’s order, without first having the EPA make a decision whether to force the order.

The Sacketts wanted to have the EPA’s decision reviewed under the APA arbitrary and capricious standard. The arbitrary and capricious standard is the most common for review of agency action. It looks at whether the EPA had substantial evidence based on the record that the Sacketts had violated a rule made by the agency. The record was non-existent though, because the EPA had never held adjudication, formal or informal. Without a record, how could the court possibly consider the issue?

Arbitrary and capricious is the most deferential standard for agency determinations. The long form of the standard is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” This is the standard for informal hearings.  It gives great deference to what the agency found both as the facts and as the determination. The appellate court will not overturn the agency so long as the agency can give reasonable explanation for its decision based on the information available at the time of the decision.

The standard of appellate review for formal hearings is “substantial evidence.” The agency’s decision must be supported by substantial evidence on the record. Under this standard the court looks at the record as a whole. During this re-examination of the record the court will question the agency’s decision more strongly and will uphold it only the decision is supported by substantial evidence.

SCOTUS was not so sure however. They wondered what standard the EPA would actually have to meet to show the order was incorrect, and how the Sacketts could even challenge the EPA’s determination in court without first having the order imposed through a hearing. The administrative agency has not sought enforcement of their order in court, and so has only stalled the Sacketts’ building process indefinitely. Without adjudication, the Sacketts could not challenge this roadblock and therefore, felt stuck and felt as though the EPA had taken their land without either due process or compensation. 

We’ll just have to see what SCOTUS says about the process the Sacketts should have used. I’ll keep you posted. 

Determining Mental Capabilities: A Comparison and Strategies

Atkins and Mental Capacity

If you’re in criminal defense, you know this case, but humor me as I do a brief  review of how executing a mentally retarded person officially became cruel and unusual punishment. The case looks at those who are competent to stand trial, but lack the mental capacity to fully understand and abstract the consequences of their actions.

It is a well settled legal concept that where sanctions are “excessive,” they are prohibited by the Eight Amendment. U.S. Const. Amend VIII; see Atkins v. Virginia, 122 S. Ct. 2242, 2246 (S. Ct. 2002); Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544 (1910). Excessive is determined by the principal of the sanction being proportionate to the crime. See Atkins, 122 S. Ct. at 2246; Weems, 217 U.S. at 367. Prior to Atkins, the concept of proportionality of punishment was already being applied in Eight Amendment issues. See Harmelin v. Michigan, 501 U.S. 957, 997-998 (finding that ninety days imprisonment was not proportional to the “crime” of being addicted to narcotics). Additionally, the concept of what is proportionate, is an evolving concept; it changes as American’s ideas of morality change. Trop v. Dulles, 365 U.S. 86, 100-101, 78 S. Ct. 590 (1958). One standard for morality is passage of legislation accepting or denying certain moral concepts. Enmund v. Florida, 458 U.S. 782, 793, 102 S. Ct. 368 (1982).

The Court also looked to actors of proportionality, the first of which is whether the culpability of a person necessitated the punishment (in this case, the death penalty). Atkins, 122 S. Ct. 2251. Another factor is whether the punishment fits with the societal concept of deterrence: does the punishment adequately, but not excessively, deter repetition of that specific conduct. Id. at 2252. Based on these two factors, as well as the fact that mentally retarded persons are often unable to provide assistance to their attorneys in creating a defense, creates a higher risk that a retarded person will be wrongfully executed. Id. at 2252.
Therefore, where a person is mentally retarded, that person cannot be executed, it would violate the Eight Amendment.  SCOTUS created this rule in Atkins, which upheld many states’ determinations at the time. But the Court made no mention of how a court could determine whether a person was mentally retarded, leaving that puzzle up to the states.

Recently, the Pennsylvania Supreme Court decided that juries would make the decision on mental abilities, after the guilt phase of the trial. I will be examining that case, Commonwealth v. Sanchez, as well as comparing and contrasting the method to Wyoming case law in the case which was one of the first to define the issue there, State v. Brown.

Pennsylvania: 

In 2010, each court in Pennsylvania was left to determine whether a judge or a jury should determine mental retardation and competence. Generally a judge would hold a pretrial hearing on mental capacity and retardation. See Com. v. Vandivner, 962 A.2d 1170 (2009); Com. v. Miller, 888 A.2d 264 (2005). However, so long as the person was adjudicated competent to stand trial, the court still gave the jury the responsibility of looking to mental retardation as a mitigating factor in the penalty phase of the trial. Vandivner, 962 A.2d at 1177; see Com. v. Terry, 521 A.2d 398, 412 (1987). Thus, although the judge could predetermine mental retardation, the jury could still overrule, if you will, the judge’s determination of mental development and capacity.

In Com. v. Sanchez, --- A. 3d ---; 2011 WL 6412518, Appellant challenged the failure of the court to hold a pretrial hearing on his Atkins assertion, and instead the court gave the issue to the jury after adjudication of guilt. Sanchez, 2011 WL at page 2. The Pennsylvania Supreme Court went through a constitutional analysis, and determined that there was no preference for a bench decision; indeed, it appeared that both the federal and state constitutions preferred a jury trial. Id. The Court determined that it was perfectly acceptable to allow juries to make decisions on mental capacity, so long as the defendant is competent. Id.

This decision was controversial. In past years the legislature in Pennsylvania has drafted a bill which would require that judges make the retardation and capacity decisions, but the bills have always failed in the House. Some advocates express concern that juries may be biased and become confused by the issue of retardation when presented with it after already determining the defendant’s guilt.

I can see and sympathize with their concerns, at times, a jury member may feel conflicted about seeing a person they declared guilty, not get the death penalty because of a low I.Q. (intelligence quotient). However, I also think that if we trust juries to make decisions as to expert information, witness credibility, and affirmative defenses such as insanity, then we already have entrusted them with the ability to determine mental capability or lack thereof. Putting the idea that way, if we feel that juries cannot adjudicate mental retardation, then why are they capable of adjudicating other difficult factual problems?

Let’s look a little bit at Wyoming case law, which has had juries determining all issues of mental capacity except for competence to stand trial, for over sixty years.

Wyoming: 

One of the early cases to address a person’s I.Q. in relation to their level of culpability in a death penalty case is State v. Brown, 151 P.2d 950 (1944). In this case the Supreme Court of Wyoming determined that the jury was the appropriate fact finder when the issue was one of whether to give a person a life sentence, or a death sentence. The court stated:

“While, as stated, the discretion of the jury to impose the penalty of death or life imprisonment is untrammeled, they cannot, in the very nature of things, bring in an intelligent verdict, unless they know the circumstances under which the crime was committed, and all the surrounding facts, including … his intelligence…  and other relevant facts which might properly aid the jury in exercising their discretion.”

Brown, 151 P.2d at 955-56. The Court ended by upholding the jury’s determination of the death penalty, despite the defendant’s “low intelligence."

This case was long prior to Atkins, and the Wyoming Supreme Court did not have to consider whether the intelligence of the defendant was so low that he could be considered retarded, but the point of discussing this case is to show how using the jury to determine mental capacity is standard and obvious practice in some States.

Wyoming has not recently addressed mental retardation specifically, although it has continued to utilize the jury for other mental capacity defenses including insanity and emotional distress. See Smith v. State, 190 P.3d 522 (2008); Eaton v. State, 192 P.3d 36. I personally worked on an appeal in the Smith case, and I do believe that the juror who was challenged in that case was not appropriate to sit on an insanity defense case. Mr. Smith represents a group of persons who have mental deficiencies and who may not be getting completely fair results. In the end, is twelve lay-persons deliberating any less safe than one judge making a decision from the bench?

Conclusion:

In conclusion, juries are commonly left to determine complex issues which may, in fact, be out of their competency range, but if we give them the fact finding power, it is hypocritical to remove it based on an issue being “too complex” or something the jurors could be prejudiced against. If we begin down that road, we may as well remove from jurors the power to determine expert witness evidentiary issues, credibility of witnesses when there is something that could prejudice the jury, and even the determination of facts which are not within their basis of knowledge.

Some of our judges are less educated, some are not sympathetic to mental conditions, and some are often accused of being biased, and so to give them the fact finding power over the jury, also seems counter-intuitive. I’m not saying the jury system is perfect, and as an appellate attorney I do distrust jury verdicts based on hindsight issues, but I will also say that sometimes the judge’s determination is no better.

In reality, getting a certain verdict generally depends on two things: the facts and the attorney’s skill. If the facts are too far against you, having the best attorney skills for weeding out bad jury members and for presenting information perfectly will not help you in the end. And if the attorney is not good at recognize issues with the empanelled jury, or if the attorney fails to present the facts in a logical and comprehensible manner, even an innocent person could end up in jail. So focus on your presentation and your skills, because that’s what you control.

Examining the Current Privilege Against Self Incrimination in Pennsylvania

The inspiration from this post comes from an article that you may wish to read. It is an article that describes how one attorney took his client’s rights so seriously that he ended up in contempt of court because of it. See this ABA article: “Law Firm Says Judge Jailed Defense Attorney for Telling Client to Take the Fifth.”

In Pennsylvania the privilege against self-incrimination is given by both the Fifth Amendment of the United States Constitution and Article I, §9 of the Pennsylvania constitution. The privilege is generally judged solely by the federal standards. Estate of Baehr, 596 A.2d 803 (Pa. Super, 1991); Com. v. Learning, 247 A. 2d 590 (Pa. 1968); Com. v. Hawthorne, 236 A. 2d 519 (Pa. 1968). Most obviously, this means that any SCOTUS decisions based on the Fifth Amendment will also apply to the Pennsylvania Courts, even in state proceedings. See Learning, 247 A. 2d at 593. Additionally, the Pennsylvania legislators intended to have the Commonwealth’s privilege to be interpreted with the Federal privilege, meaning that any inferences that can be drawn from the Federal privilege should also be drawn from the Pennsylvania privilege. See Com. v. Swinehart, 664 A.2d 957 (Pa. 1995). Finally, this means that any Pennsylvania self-incrimination decision is open to review by federal court since it, by its nature, examines federal law. Keep this in mind then, that federal court is always an avenue for appeal in a self-incrimination case.

What Exactly Does the Privilege Convey?

The privilege against compelling self-incrimination is exactly what is sounds like, any statements which could be construed as creating criminal liability are not statements which any investigating or judicial officers can force the witness to make. The privilege begins at the time of custodial questioning and is continuous throughout the process of interrogation and trial. Com. v. Johnson, 788 A.2d 985 (Pa. 2001); Com. v. Kilgallen, 108 A.2d 780 (Pa. 1954). This means that you/your client should be made aware of the privilege at the first custodial interrogation, and then the privilege continues thereafter.

In regards to protecting the witness, the person may assert the privilege whenever the statement could create criminal liability. Com. v Lenart, 242 A.2d 259 (Pa. 1968). This means that if a witness has reasonable cause to think there is a danger of prosecution, the witness may refuse to answer the question. Com. v. Nacrelli, 421 A.2d 752 (Pa. Super. 1980). The exercise of the privilege does not require that the statement would be sufficient to cause conviction, only that it implicate the person in criminal activity, regardless of whether he or she could be convicted for it. See Lenart, 242 A.2d at 262. Nothing other than a grant of immunity can compel an answer, because “the prosecution machinery will grind,” even in the face of lack of evidence, violation of rights, or even a statute of limitations bar. See id.

The privilege against self-incrimination does not necessarily mean that the opposition attorney cannot ask the questions though. The privilege is considered an option not to speak for the witness, and does not prohibit inquiry in the first place. Com. v. Johnson, 788 A.2d 985 (Pa. Super 2001). Where a witness takes the stand, including the defendant, he or she is subject to cross examination and all questions that might arise with it, so long as they do not violate the rules of court. See id.; Com v. Cavanaugh, 46 A.2d 579 (Pa. Super. 1946).

When a party claims the privilege of the Fifth Amendment after a question, the jury or the court may take whatever inferences they want from that claim. Frompovitz v. W.C.A.B. (Palsgrove), 642 A.2d 638 (Pa. 1994). When determining whether to place your witness or the defendant on the stand consider what implications or adverse inferences may be drawn from a refusal to answer.

The Privilege Does Not Apply in a Few Situations

Where the witness attempts to perjure him or herself in contradiction of a prior voluntary incriminating statement, he or she may not assert the Fifth Amendment. Com. v. Hawkins, 469 A.2d 252 (Pa. Super. 1983). This issue hinges on there being a previous voluntary incriminating statement. The individual may not be permitted to commit perjury, but also has already made a valid statement that can be used in court. See id.

a.       As a refinement of this rule: the introduction of wrongly obtained evidence in court cannot compel the witness to speak. Com. ex.rel. Di Dio v. Baldi, 106 A.2d 910 (Pa. Super. 1954); Com. v. Bruno and Perna, 106 A.2d 905 (Pa. Super. 1954). Thus if the confession is obtained in violation of the defendant’s rights, the defendant may still validly assert his or her Fifth Amendment privilege because unlawful seizure of evidence does not mean that the witness has given up his or her Fifth Amendment privilege. Id.

The privilege does not extend to situations where there is no risk of criminal liability. Weaver v. Pa. Bd. of Probation and Parole, 688 A.2d 766 (Pa. 1997). Where the issue is instead a threat of civil suit, loss of community standing, loss of employment, or even loss of probation or parole, the Fifth Amendment is not available. Id.

a.       Caveat: this does not mean the privilege cannot be invoked in a civil proceeding, it can. Wherever the statement could cause criminal liability, it can be privileged. Frompovitz v. W.C.A.B. (Palsgrove), 642 A.2d 638 (Pa. 1994); McDonough v. Com. Dept. of Transp., 618 A.2d 1258 (Pa. 1994).

Where a person makes an admission at an administrative proceeding, the Fifth Amendment may not later be claimed. McDonough, 618 A.2d at 1261. Remind your client that in an administrative proceeding one can still assert the Fifth Amendment privilege. In administrative proceedings there is no per se violation of the Fifth Amendment privilege just because an administrative hearing is help prior to criminal disposition. Id.

A grant of immunity through Pennsylvania’s immunity statute (42 Pa.C.S.A §5947) allows the court to compel self-incriminating statements. Com. v. Swinehart, 664 A.2d 957 (Pa. 1995).  A grant of immunity protects the witness from prosecution by his or her own words, but if evidence can be found that is not a derivative of those words, then that witness can still be prosecuted. Id.; Com. v. Handfield, --- A.3d---, 2011 Pa. Super 269 (Pa. Super 2011). The Commonwealth has the burden of showing thorugh clear and convincing evidence that the evidence upon which the subsequent prosecution is based arose from wholly independent sources. Swinehart, 664 A.2d at 968-69; Handfield, --- A.3d at 17.

Recent Developments in Pennsylvania’s Article I, §9 and the Fifth Amendment

When prosecuting a defendant who chooses not to testify, the Commonwealth may not use the defendant’s silence as an inference of guilt. Com. v. Molina, --- A.3d ---, 2011 Pa. Super. 237 (Pa. Super 2011) (following case from the First, Sixth, Seventh, and Tenth Circuits holding that a prosecutor using silence as an inference for admission of guilt is not permissible at trial, whenever the silence occurs). The prohibition on use begins from the first question asked and unanswered, whether the defendant is in custody or not. Id. at 8-9. Prior statements by the defendant, whether an admission or merely a contradiction to testimony, can be used by the prosecution, and can create a negative inference for the jury. Com. v. Hanible, 30 A.3d 426 (Pa. 2011) (allowing a prosecutor to refer to a witness’ statement as a liein closing argument is not improper at trial, so long as an admissible prior statement was made).

The Fifth Amendment offers no protection to allow a refusal to identify a oneself. Com. v. Durr,                  --- A.3d ---, (Pa. Super. 2011). The availability of the Fifth Amendment depends on the nature of the statement and whether the statement itself could provide grounds for criminal liability. Id. A person’s name does not create criminal liability on its own, it is merely an identifier.

The Fifth Amendment applies to a decertification hearing, which transfers a juvenile charged in the court of common pleas down to the juvenile court, because this hearing is “comparable in seriousness to criminal prosecution.” Com. v. Brown, 26 A.3d 485 (Pa. Super. 2011) (quoting State v. Davis, 998 P.2d 1127). These hearings are fully adversarial and determine juveniles’ rights, and along with full due process, a juvenile should be afforded full constitutional rights at these hearings. A child cannot be forced to admit guilt or accept responsibility for the crime to allow the child to be decertified to juvenile court. Id.