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.