Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

August 29, 2008

PRIVILEGE AGAINST SELF-INCRIMINATION
The Fifth Amendment to the United States Constitution provides, in part, that “no person … shall be compelled in any criminal case to be a witness against himself.”

This amendment was made applicable to all states through the Fourteenth Amendment to the United States Constitution. See: Malloy v. Hogan, 378 U.S. 1, 6 (1964).

This privilege, along with the right to trial by jury and right to confront one’s accuser, form a trilogy of constitutional guarantees which are essential in safeguarding individual liberties in the American legal system.

The history of the privilege against self-incrimination is probably the most torturous of this trilogy of constitutional guarantees. The historical struggle surrounding the establishment of this privilege, involving countless individual efforts and human sacrifices, brought with it an enlightened civilization.

THE HISTORY OF THE PRIVILEGE

Mary A. Shein, writing in the Brooklyn Law Review (Summer, 1993), authored an article entitled “The Privilege Against Self-Incrimination Under Seige: Asherman v. Meachum” in which she sketched out the historical implications of the privilege. See: 50 Brook.L.Rev. 503. Shein pointed out that the privilege “was adopted in response to a long history of oppression of the individual by the state and today remains an important shield, protecting individuals against abuses of state authority.” Id.

Speaking to the history of the privilege in American jurisprudence, legal scholar Leonard Levy echoed Shein’s observation by writing that “the framers understood that without fair and regularized procedures to protect the criminally accused there would be no liberty. They knew that from time immemorial the tyrant’s first step was to use the criminal law to crush his opposition.” See: Leonard Levy, Origins of the Fifth Amendment 431 (1968).

The need for the privilege to protect against state-sponsored abuses was certainly not the sole basis for its creation. There was also a prevalent need to protect the individual from the horrific inquisitional abuses of the church. The famed former Associate Justice of the United States Supreme Court, Abe Fortas, made this abundantly clear when he wrote: “[H]istory demonstrates that the fight for the privilege against self-incrimination was a part, and an important part, of the great struggle against the oppression of the individual by the church and state.” See: Abe Fortas, The Fifth Amendment: Nemo Tenetur Prodere Seipsum, Cleveland Bar Association, 25 The Journal 91, 97 (1954).

A dissenting U.S. Supreme Court justice some six decades before Fortas’ observation noted that the Fifth Amendment privilege is the “result of a long struggle between opposing forces of the spirit of individual liberty on the one hand and the state on the other.” See: Brown v. Walker, 161 U.S. 591, 637 (1896)(Field, J., dissenting).

The physical and psychological pain inherent in torture was routinely inflicted by both the state and the church to extract incriminating evidence against the individual and others. Torture, therefore, preceded the privilege. Shein said that the origins of the privilege can be traced back to the twelfth century. Id., Brook L. Rev. at 505. See also: O. John Rogge, The First & Fifth 138 (1968); 8 John H. Wigmore, Wigmore on Evidence § 2250, at 269-70 (1961). Levy said that the privilege can be traced back even farther, to ancient Judaic law. Id., at 433.

Wigmore said the formal inquisition method of prosecution was first introduced in England by the ecclesiastical courts. Id., § 2250 at 269-84. Under this method, said Levy, the accused individual was forced to take an oath to provide truthful answers to all questions presented by the court. Shein said that the individual lacked any meaningful safeguards to protect him from “unfair prosecution.” Id., at 506.

“A court could interrogate an individual on its own motion and then act as accuser, prosecutor, judge and jury,” Shein wrote. Id., at 506-07. See also: Mark Berger, Taking the Fifth 1-23 (1980). Berger described what it meant to be an accused under the inquisitorial system:

“The accused was not informed of the charges, his accusers, nor the evidence against him. He was condemned if he refused to take the oath, condemned if he supplied the sought-after admissions, and risked perjury if he failed to tell the truth. In the hands of a skillful interrogator, the inquisitorial proceeding and oath were extremely powerful tools and nearly foolproof in securing the conviction of those against whom they were directed.” Id. at 6.

Rumor and suspicion were sufficient to secure not only a conviction but a sentence of death by unspeakable methods. The accused faced the Inquisitor and Bishop. They showed the accused the instruments of torture prior to the inquisition. The accused was encouraged to confess. If he didn’t, he was stripped and bound before once again encouraged to confess with the promise of mercy, Standing, bound and naked, before a blood-thirsty crowd, the accused saw the iron rods being heated, or the pulleys of the rack being tested. It almost always compelled self-incrimination.

One particularly brutal method of torture was the Oral, Rectal and Vaginal Pear. This device was inserted into one of the three body cavities, and expanded by the turn of a screw. Maximum aperture immediately resulted in the body cavity being mutilated. Sharpened points on the prongs ripped the throat and intestines apart.

Prior to its revolution, France made inquisition through torture a systemized, efficient method of inflicting punishment on the wrongdoer. There were only two forms of torture: ordinary and extraordinary. Ordinary torture consisted of the accused being lashed, hand and feet, to iron rings in a wall. He was then hauled up by ropes, effectively racked until all his joints were dislocated. Extraordinary torture was simple: the accused was forcibly administered 30 pints of water called the “water cure”.

Actual execution did not prove to be “merciful.” The condemned prisoner was lashed to a wooden cross. The bones in both legs and arms were broken in two places by the executioner using an iron bar. The prisoner was then left to die – unless the crowd witnessing the execution was unappeased. The prisoner was then burned on the cross.

Actually it was organized government that paved the way for the privilege against this kind of forced inquisitorial self-incrimination. While the inquisitorial method of prosecution was introduced by ecclesiastical judges and adopted by the English common law courts, the Crown repeatedly found itself at odds with the church and ultimately felt compelled to curtail the awesome, arbitrary powers of ecclesiastical judges. It was this constant jurisdictional power struggle between the Crown’s civil authorities and the church that fueled opposition to the inquisitorial method of prosecution. See: Shein, Brook L.Rev. at 506.

In 1641 the British Parliament passed a bill that outlawed the use of the “ex efficio oath as an ecclesiastical procedure in any penal matter.” Shein, Brook L.Rev., note 15. The decision by Parliament to abolish the oath came after “Freedom John” Lilburn was arrested in 1640 and charged with printing or importing heretical and seditious books. Freedom John refused to take the oath or to provide evidence against himself. He was convicted and condemned to be whipped and pilloried. Lilburn appealed to Parliament. The House of Commons vacated the sentence calling it “illegal and against the liberty of the subject.” Id.

In the wake of the Lilburn case, the Parliament abolished the Court of Star Chamber and the Court of High Commission for Ecclesiastical Causes – all clear evidence that opposition to the inquisitorial system of justice was increasing. See: Wigmore, § 2250, at 283-84. Shein reported that by the end of the seventeenth century, the privilege against self-incrimination had firmly entrenched itself in the common law of England. Justice Fortas noted that the privilege was then imported to the American colonies. Id., Fortas, note 2 at 97.

“ … as [the Colonies’] political and economic systems matured, their legal systems most strikingly in the field of criminal procedure, began more and more to resemble that of England,” wrote Bernard Levy.

It was not surprising that the American colonies would follow the lead of England since they had been mostly settled by British subjects. The right most sacred and fundamental right to these colonists was the legal guarantee that the individual could not be compelled to give evidence against himself – even though this right sacrificed to the religious hysteria evoked by the Salem witch trials in 1692.

It was the religious intolerance exhibited during the Salem witch trials that made many prominent colonial leaders to realize that the right against self-incrimination had to be made absolute in the New World.

“Other social conditions of colonial life also generated increased opposition to compulsory self-incrimination,” wrote Shein. “For example, the Crown began using increasingly arbitrary means to administer justice in the Colonies, and would sometimes torture individuals to extract information during investigations. Id., Brook L.Rev. at 508.

Following the Revolutionary War and removal of the Crown’s yoke, states like Virginia, Pennsylvania, Maryland, North Carolina, Vermont, Massachusetts and New Hampshire all included the right against self-incrimination in their constitutions or bills of rights. Id. Levy pointed out that during the ratification process of the Federal Constitution, a Bill of Rights became necessary to “allay concerns that the new federal government would become too powerful.” Id. See also: Levy, supra note 2, at 418-21.

Colonial leaders truly believed that the privilege against self-incrimination was an essential protection necessary to keep a constitutional check on the new sovereignty of the United States of America. Consequently, both the 1789 Bill of Rights and U.S. Constitution included the right to remain silent.

POLICY REASONS FOR THE SELF-INCRIMINATION PRIVILEGE

1. The “cruel trilemma”

One basic policy reason for the existence of the privilege against self-incrimination is that it prevents individuals from being subjected to what the Supreme Court called “cruel trilemma of self-accusation, perjury or contempt.” See: Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55 (1964)[history and policies of the privilege reviewed]. The Court has ruled that an individual facing contempt a charge may face similar concerns as someone facing legal compulsion. See: Pennsylvania v. Muniz, 496 U.S. 582, 596 (1990)[“cruel trilemma” analogous to legal compulsion]. See also: Miranda v. Arizona, 384 U.S. 436, 461 (1966)[privilege not only protects against legal compulsion but also protects from “informal compulsion exerted by law enforcement officials during in-custody questioning”].

“Muniz and Miranda suggest that it is not the means used to overcome an individual's will to remain silent that is central to the ‘cruel trilemma’ rationale, but the element of compulsion,” Shein wrote. See: Brook L.Rev., note 28.

Legal scholars like Shein have uniformly concluded that it is inherently cruel to force an accused to be an instrument in his own condemnation. See: David Louisell, Criminal Discovery and Self-Incrimination: Roger Traynor Confronts The Dilemma, 53 Cal. L. Rev. 89, 95 (1965). As Justice Field put it in Brown v. Walker: “The essential and inherent cruelty of compelling a man to expose his own guilt is obvious to every one and needs no illustration. It is plain to every person who gives the subject a moment's thought.” Id., at 161 U.S. at 637.

2.  Protecting the Accusatorial Process

The privilege against self-incrimination certainly plays what Shein called “an important role in preserving the accusatorial nature of our criminal justice system.” Id., Brook L.Rev. at 510. While the privilege has out-grown some of the original reasons for its creation, any legislative attempt to abolish or restrict its application by the judiciary would allow the ancient seeds of the inquisitorial system to re-emerge at a time when this nation is suffering through the CIA’s “secret prisons” program and the military’s “enemy combatant” adjudication proceedings.

The accusatorial process imposes upon prosecutors the absolute burden of proving guilt beyond a reasonable doubt. This constitutional burden maintains what John Wigmore called the “fair state-individual balance.” See: 8 Wigmore, supra note 8, § 2251, at 317. Shein wrote that “the Constitution limits the power of the state where the potential for abuse of individual rights exists. By including the privilege against self-incrimination in the Bill of Rights, the framers acknowledged that the power to compel individuals to incriminate themselves created enough potential for abuse that it should be limited. The result of such a determination was that the state would be required to bear the burden of proving its case without the help of the defendant.” Id., note 31.
 
3. Prevention of compelled self-incrimination

The privilege is designed to protect the individual from physical and psychological abuse by government officials. See: Murphy, supra, 378 U.S. at 55. See also: Levy, supra note 2, at 326-27[privilege developed out of the struggle to eliminate torture as a government practice]. Shein says the government would inevitably resort to “highly coercive techniques” to force information out of suspects without the privilege protection. Id.

“ Some commentators assert that in the absence of a privilege against self-incrimination,” she write, “the government would abuse its power by oppressing individuals who hold unpopular religious or political beliefs. See Friendly, supra note 8, at 696 (The privilege provides ‘a shelter against governmental snooping and oppression concerning religious and political beliefs’); Berger, supra note 8, at 35 (‘Compelled self-incrimination, if tolerated, might well prove to be too tempting a tool for use against minority views.’).” Id., Brook L. Rev. at 511.

In its “war on terror,” the Bush administration has resorted to the abuses inherent in the inquisitorial system to gather evidence of “terrorism.” They abandoned accusatorial system protections, finding them too cumbersome in the evidence-gathering process. That was precisely the philosophy of the Inquisitor and Bishop in the 1500s. They felt it was perfectly rational to compel individuals to incriminate themselves under the real or perceived threat of torture. Kidnappings, forced interrogations, water boarding, and unlimited detention without the benefit of due process of law are the benchmark of an inquisitorial system.

4.  The inviolability of individual privacy

Finally, as the Supreme Court said in Murphy, the privilege mirrors society’s “respect for the inviolability of the human personality and the right of each individual ‘to a private enclave where he may lead a private life’.” Id., 378 U.S. at 55. See also: United States v. Grunewald, 233 F.2d 556, 581-82 (2nd Cir. 1956), rev’d, 353 U.S. 391 (1957). Shein quoted Mark Berger excellent observation:

“’Our system of government represents an attempt at accommodating the often opposing interests of the citizen and the state. In a very general sense, it accords high regard to the individual and seeks to protect him from unwarranted state interference. Beyond that it protects the individual against methods of intrusion that may violate his individuality and integrity, even though the intrusion itself may be unwarranted. The Fifth Amendment very clearly promotes these goals and is justified by them’.” Id., Brook L.Rev. at 511.
The sordid post-WWII history of covert intelligence gathering in America reflects that the government does not always respect these constitutional rules. In the 1950s and 1960s the CIA was linked to assassinations of foreign leaders and the overthrow of legitimately elected foreign governments. The CIA worked with the mafia, mercenaries, and murderous dictators to pursue its intelligence gathering objectives – all supposedly designed to “protect American interests.”
In the 1960s the FBI under the leadership of the late J. Edgar Hoover conducted domestic intelligence gathering on prominent Americans which was used by the director as “political blackmail” and to satisfy his own prurient, deviant sexual interests. In the 1970s the CIA during the corrupt “Nixon era” joined with the FBI in the nasty business of “domestic surveillance” activities of American citizens. Anyone who dared speak against the government, or the “Establishment” as it was commonly referred to, became a target of government surveillance. Not only was the private lives of many Americans exposed for the wretched purpose of public embarrassment and ridicule but some of the more “radical” antagonists were framed for criminal prosecution while others were assassinated by government agents.
More recently, the Bush Administration with The Protect America Act of 2007 now has authority to conduct its beloved “surveillance activities” without any real judicial oversight. Following the president signature on the legislative enactment the White House issued a “fact sheet” that listed the four ways the new act “modernizes” the Foreign Intelligence Surveillance Act of 1978:

• The Act permits our intelligence professionals to more effectively collect foreign intelligence information on targets in foreign lands without first receiving court approval.
• The Act provides a role for the FISA court in reviewing the procedures the intelligence community uses to ensure that surveillance efforts target persons located overseas.
• The Act provides for the FISA court to direct third parties to assist the intelligence community in its collection efforts.
• The Act protects third parties from private lawsuits arising from assistance they provide the government.

There is no empirical evidence that The Protect America Act of 2007 will be used responsibly to detect real terrorist threats emanating from abroad. Based on past experience not only with this administration but with Nixon and pre-Nixon administration, the “third parties” the government plans to use will be rogues engaged in a plethora of illegal activities. And while the court authorized under FISA may maintain some limited reviewing role in the surveillance process, the White House has clearly circumvented the court’s longstanding constitutional concerns on the issue of “probable cause” with this new “protect America” legislation.

In a recent The New York Times op-ed piece, law professors Jeff Goldsmith and Neal Katyal proposed what they called a “bipartisan measure” that Congress create a “Terrorists Court.” The law professors wrote that “nearly six years after 9/11, the government’s system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts.” Explaining their proposal, the professors said “the two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.”

Writing in a “guest column” for the JURIST, University of Toledo College of law professor Benjamin Davis reacted indignantly to the Goldsmith and Katyal proposal: “What a sad day! I am amazed! Law professors who are preventive detention advocates. A National Security Court! Have things gone this far in this country that people are really mulling seriously the merits of a preventive detention regime? Is the hysteria this crazy?”

The tragic truth is that the “terrorist” hysteria has become borderline political insanity. In the aftermath of 9/11, Geneva convention mandates, the “Great Writ” of habeas corpus, the FISA court, traditional notions of due process of law, and the sacred privilege against self-incrimination lay shattered on the battlefield in the ever-expanding “war on terror.” Preventive detention is an inevitable consequence. After all the states of Kansas and Washington have already embraced laws approved by the U.S. Supreme Court that authorize the “preventive detention” of sex offenders determined to pose a “threat to society” upon completion  of their criminal sentences. So in this “crazy” world of real and imagined “terrorists threats,” it only follows that law professors like Goldsmith and Katyal would propose Congressional legislation establishing “preventive detention” facilities for “enemy combatants” and a “National Security Court” to deal with them.

The tragedy is that terms like “The Protect America Act” and “preventive detention” and “National Security Court” have been created to support both the knowing and unsuspected efforts of many in this country to undermine the accusatorial system and replace it with a “water boarding” inquisitorial system of evidence gathering and prosecution.

THE IMPACT OF BOYD V. UNITED STATES

Writing in the American Journal of Legal History (July 1998), Katharine B. Hazlett distinguished the historical privilege against self-incrimination from the “modern privilege.” See: Kathrine v. Hazlett, The Nineteenth Century Origins of the Fifth Amendment Privilege Against Self-Incrimination, 42 Am.J.Legal Hist. 235. Hazlett wrote:

“Fifth amendment jurisprudence is not what it used to be. In fact, it hasn't been what it used to be for over one hundred years now. The right to remain silent in the face of incriminating questions in any judicial proceeding, and the right, if a defendant or witness were to speak, to have his answers excluded from a subsequent trial against him, is the modern understanding of the ‘privilege against self-incrimination’ contained in the fifth amendment. The ‘modern’ privilege--the right of any witness or defendant to refuse to answer incriminating questions in any proceeding and the inadmissibility at trial of any self-incriminatory statements a defendant or witness may have made--is a modern re-working of the original meaning of the fifth amendment. The modern privilege developed across the nineteenth century. At the beginning of the 1800s, courts explained that the privilege of a witness to refuse to answer incriminating questions fell outside the fifth amendment; by the end of the century, the Supreme Court declared that the purpose of the fifth amendment was to ensure that a witness would not be compelled to give self-incriminating testimony in any judicial proceeding.
For the first ninety years after the adoption of the fifth amendment, courts interpreted the constitutional privilege to pertain only to a defendant at his or her own criminal trial. During this time, the expression “privilege against self-incrimination” most often referred to the witness privilege, or the common law right of a witness to refuse to answer incriminating questions in a civil suit. The modern American privilege was born when the Supreme Court declared in the 1886 decision Boyd v. United States [116 U.S. 616 (1886)] that the witness privilege was part of the fifth amendment. After Boyd, any witness or party had the right to be silent in the face of incriminating questions in any judicial proceeding. The holding of Boyd is best explained as a result of the new prominence the Civil War and Reconstruction gave to federal constitutional rights and as a response to the expanding scope of federal law at the end of the nineteenth century.” Id.

Boyd v. United States is significant in the history of the privilege because it was the first judicial decision to find a law unconstitutional on the ground that it violated the Fifth Amendment privilege against self-incrimination. Boyd was in business with the federal government providing glass from his warehouse to be used in the construction of government building. See: Hazlett, 42 Am.J. Legal Hist. at 252. As part of the deal with the government, Boyd was allowed to import duty-free the same quantity of glass that he sold the government. Boyd said that some of his glass was broken during shipment so felt obliged to import additional glass duty-free. Id. The government did not believe Boyd, and pursuant to an 1874 statute, it moved for forfeiture of 35 cases of glass as reimbursement. Id. The statute allowed the government to “forced production of any document” it needed to make its case; therefore, the government subpoenaed invoices for the cases of glass. Id.

Based on the production of the invoices, the trial court found Boyd guilty of violating “revenue laws.” Id., The Supreme Court, however, reversed Boyd’s conviction finding that the 1874 statute “unconstitutional and void” because it caused an individual “to be a witness against himself, within the meaning of the fifth amendment” by compelling production of incriminating evidence. Id., 116 U.S. at 635.

It was for this reason, Hazlett said, that Boyd “constitutionalized” the witness privilege because it applied the Fifth Amendment beyond the common law privilege rule that protected the individual from answering incriminating questions in a judicial proceeding. Id., 42 Am.J.Legal Hist. at 252-53. Hazlett added:

“On one level, Boyd's holding is shocking in light of prior federal decisions holding both that the 1874 statute was constitutional and that the witness privilege had nothing to do with the fifth amendment. Its sharp departure from precedent is highlighted when one reads the briefs submitted to the Supreme Court. Boyd's brief did not argue that the statute violated the fifth amendment, while the government briefly discussed the cases in the previous section for the proposition that the law was constitutional. Precedent clearly went against the Court's outcome in Boyd. Yet, what is ironic about the Boyd decision is that the Court reached its startling new holding by taking a seemingly small step from the reasoning of prior decisions. The Court held that the civil proceeding against Boyd was close enough to a forfeiture proceeding against a defendant who committed a criminal offense that Boyd was entitled to all the protections that a similarly-situated criminal defendant would enjoy. In other words, the Court expanded the definition of a criminal trial for the purposes of the fifth amendment. Although this expansion was a departure from precedent, applying the privilege against self-incrimination to the newly-defined criminal trial accorded with prior opinions. Every court had interpreted the fifth amendment to apply to a defendant in his or her own criminal trial; if other courts had re-defined criminal trials to include quasi-criminal forfeiture proceedings, then they would have reached the same outcome the Boyd Court did.

“The Court could have put down its pen after re-defining a criminal trial, held for Boyd, and avoided incorporating the witness privilege into the constitution. Yet, after expanding the scope of a criminal trial for the purposes of the fifth amendment, the Court declared that its re-definition did not bear upon the outcome of the case since ‘[a] witness, as well as a party, is protected by the law from being compelled to give evidence that tends to criminate him, or to subject his property to forfeiture.’ On these grounds, the Court then declared the law unconstitutional. The common law witness privilege would have protected Boyd. Congress, however, had abrogated the common law rule by passing the 1874 statute. Whether Congress was able to change the law so that it no longer shielded witnesses and parties from incriminating questions was precisely the issue in Boyd. Lower courts without exception had affirmed Congress's ability to alter the common law. The Supreme Court, however, responded to the question ‘Can Congress abrogate the common law witness privilege?’ by answering: ‘The common law protects parties and witnesses from answering incriminating questions.’ By replying in this way, the Court effectively declared that Congress could not alter the common law privilege against self-incrimination. On what grounds could the court refuse to recognize Congress's legislative authority? Since Congress clearly had the right to alter the common law, the privilege against self-incrimination must lie in the constitution. The Court thus latched onto the language in the fifth amendment to declare the statute ‘unconstitutional and void.’ Therefore, Boyd constitutionalized the witness privilege in order to invalidate Congress's attempt to abrogate the common law privilege.” Id., 42 Am.J.Legal Hist. at 253-54.[Emphasis added]

Clearly, the colonial leaders who framed the Bill of Rights, as well as the framers of the Constitution with the Fifth Amendment, both of which extended to the individual a fundamental right to silence, intended for the privilege against self-incrimination to be “constitutionalized” – to be beyond the whim of individual lawmakers in the Congress.

The Boyd decision, therefore, is constitutionally significant because it reaffirmed the strength of the accusatorial process by emphasizing the government’s absolute burden to prove criminal wrongdoing beyond a reasonable doubt and not by compelling the individual to produce evidence against himself.

Evidence gathering in the “war on terror” has abandoned the historical underpinnings of Boyd. The government today believes the dangers of terrorism, actual or perceived, justify inquisitorial methods of evidence gathering; namely, compelling individuals suspected of terrorism to provide incriminating evidence against themselves, even by means of torture like “water boarding” - what the French in the 1500s called “extraordinary” torture.

In September 2006 President Bush finally acknowledged that the CIA maintained “secret prisons” or what former CIA Director George Tenet called an “extraordinary rendition” program. The president defended program as being a tough and necessary weapon in the “war on terror.” The president’s comments about the program seemed to compare “torture” to “tough love.” He said the “interrogation” of 14 top al Qaeda suspects, including Abu Zubaydah, Khalid Sheikh Mohammed, and Ramsi Bin al-Shibh, uncovered and prevented significant terrorist attacks in the United States. He cited as an example the alleged terrorist plot to hijack an airplane and fly it into the Library Tower, the tallest building in Los Angeles.
Pointing out that Zubaydah did not cooperate until the CIA employed what the president called an “alternate set of interrogation procedures,” Bush said the bin Laden loyalist began to give up other terrorist suspects once the new interrogation procedures were employed on him.
“This [extraordinary rendition] program has been and remains one of the most vital tools in our war against terrorists,” the president calmly said while casually dismissing the international protests against American torture.
In addition to Zubaydah, both Ramsi Bin al-Shibh and Khalid Sheikh Mohammed were quickly broken by the “alternate set of interrogation procedures.” Bush pointed out that “once in our custody, KSM was questioned by the CIA using these procedures, and he soon provided information that helped us stop another planned attack on the United States.”
The CIA “interrogation procedures” involve six escalating steps that ends with “water boarding” during which the suspect is made to feel like he is drowning. Human rights groups have called this procedure torture.
“The United States does not torture,” the president said, disagreeing with those groups. “It’s against our laws, and it’s against our values. I have not authorized it, and I will not authorize it.”
But the case of Khaled El-Masri contradicts the president’s non-torture statements. A German citizen of Lebanese descent, El-Masri was traveling in Macedonia in December 2003 when he was taken into custody by that nation’s law enforcement officials on some technicality concerning his passport. They held El-Masri in their custody for twenty-three days at a hotel in Skopje before turning him over to American CIA operatives. That began an odyssey of torture for El-Masri and an official plundering of time-honored principles of law set forth in this nation’s Bill of Rights and its Constitution by the CIA.

CIA operatives flew El-Masri in a private plane to a secret CIA-operated detention facility in Kabul, Afghanistan. He was beaten, drugged, bound, and blindfolded during this transport. He remained confined in this CIA torture facility until May 2004. Held in a small, dirty cell, El-Masri was subjected to repeated “interrogations” and was not allowed to contact his family or the German government.

Finally, on May 28, 2004 El-Masri was transported by the CIA to Albania and released on a hill in a remote area. He was then picked up by Albanian officials who took him to an airport in Tirana where he was put on a flight to Germany.

In December 2006 El-Masri filed a lawsuit against former CIA Director George Tenet, unnamed CIA employees, and private individuals who provided resources and transports to the intelligence agency. El-Masri charged that he had been abducted, detained, and tortured pursuant to the “extraordinary rendition” program devised by Tenet. The El-Masri lawsuit charged that this program permits the CIA to secretly abduct and detain persons outside of the United States suspected of being involved in terrorist activities. He said the abductees are detained in secret prisons, routinely tortured, and held completely incommunicado. He said it is an “American policy of terror” implemented to fight the Bush-declared “war on terror.”

The Government quickly intervened in the lawsuit that was filed in the United States District Court for the Eastern District of Virginia. The Government said that El-Masri’s lawsuit could not proceed because “it posed an unreasonable risk that privileged state secrets would be disclosed.” The District Court granted the Government’s “motion to dismiss” the lawsuit based on what is known as the “state secrets doctrine.”

El-Masri applied to the United States Supreme Court for review, and on October 9, 2007 the court denied El-Masri’s petition. The Court cited its 1953 decision that recognized the common-law state secrets privilege. In that case a military plane crashed in Georgia and family members of three civilians who died in the crash brought a civil lawsuit against the government. Attorneys for the family members requested a copy of the flight accident report during the discovery process of that lawsuit. The government refused to disclose the report claiming that it contained information about secret military equipment being tested during the fatal crash. The court agreed with the government, saying the report was protected from disclosure by the “state secrets privilege.”
The reason the American government today is operating “secret prisons,” utilizing an “alternative set of interrogation procedures” like water boarding, and warehousing “enemy combatants” without due process rights in a Cuba detention facility is because the constitutional legacy of Boyd v. United States would not permit this inquisitorial method of evidence gathering. Not even the “state secrets doctrine” could conceal in a criminal trial process the constitutional violations such inquisitorial methods produce.

THE CURRENT STATE OF THE LAW
The Fifth Amendment “protects a person … against being incriminated by his own compelled communications.” See: Fisher v. United States, 425 U.S. 391, 409 (1976).
The Supreme Court has established a three-prong criteria necessary to trigger Fifth Amendment protections: the individual’s statement or act must (1) be compelled, (2) be testimonial, and (3) incriminate the individual in a criminal proceeding. See: United States v. Hubbell, 530 U.S. 27, 34-35 (2000).
This Fifth Amendment protection permits a criminal defendant to refuse to testify at trial and “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.” See: Minnesota v. Murphy, 465 U.S. 420, 426 (1986)[quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)].
The year before Lefkowitz the Supreme Court in Kastigar v. United States held that the Fifth Amendment applies in any proceeding to “disclosures that the witness reasonably believes could be used [against him/her] in a criminal prosecution or could lead to other evidence that might be so used.” See: 406 U.S. 441, 445 (1972).
The Fifth Amendment protects only communications that are compelled. For example, the Supreme Court in Estelle v. Smith held that a criminal defendant’s admissions during a court-ordered psychiatric examination were not “given freely and voluntarily without any compelling influences,” and, therefore, his Fifth Amendment guarantee was violated. See: 451 U.S. 454, 468-69 (1981). See also: Powell v. Texas, 492 U.S. 680, 681 (1989)(per curiam)[defendant’s Fifth Amendment protection triggered during court-ordered psychiatric examination pertaining to future dangerousness].
The Court, however, has ruled that inadmissible evidence from a psychiatric examination is admissible to rebut a criminal defendant’s mental-status defense without offending the Fifth Amendment protection . See: Buchanan v. Kentucky, 483 U.S.  402, 423-24 (1987).
The U.S. Supreme Court has refused to find a Fifth Amendment violation in the following situations lacking “compulsion”:

• No Fifth Amendment violation in Ohio’s voluntary interview relating to clemency request because inmate testimony not compelled. See: Ohio Adult Parole Auth. V. Woodward, 523 U.S. 272, 286 (1998).
• No Fifth Amendment violation when criminal defendant made incriminating statements to cellmate who was an undercover agent because statements not compelled. See: Illinois v. Perkins, 496 U.S. 292, 293 (1990).
• No Fifth Amendment violation when government subpoena was issued to third party because the target of investigation was not compelled to produce any materials. See: SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742 (1984)

What is “compelled communication?”
The Supreme Court in Doe v. United States said a compelled communication must be “testimonial” and to be considered testimonial the “communication must itself, explicitly or implicitly, relate a factual assertion or disclose information [that expresses] the contents of an individual’s mind.” See: 487 U.S. 201, 210 n. 9 (1988): See also: United States v. Hubbell, supra, 530 U.S. at 34-35; Fisher v. United States, supra, 425 U.S. at 409.
The burden to prove a compelled communication is testimonial rests with the party invoking the Fifth Amendment privilege protection. See: In re Foster, 188 F.3d 1259, 1270 (10th Cir. 1999)
The government is afforded a great deal of latitude in conducting its investigations because of the difference between testimonial and non-testimonial communications. The following investigatory tactics do not offend the Fifth Amendment because they were deemed non-testimonial:

• Compelling a defendant to reenact a robbery. See: Avery v. Procunier, 759 F.2d 444, 448 (5th Cir. 1985).
• Compelling a defendant to shave either mustache or beard during trial to assist in identification. See: United States v. Valenzuela, 722 F.2d 1431, 1433 (9th Cir. 1983).
• Compelling a defendant to try on clothes to demonstrate fit. See: Holt v. United States, 218 U.S. 245, 253-53 (1910).
• Compelling a defendant to dye hair. See: United States v. Brown, 920 F.2d  1212, 1215 (5th Cir. 1991).
• Compelling DWI defendant to demonstrate slurred speech and lack of coordination on videotape. See: Pennsylvania v. Muniz, 496 U.S. 582, 592 (1990).
• Compelling defendant to provide handwriting sample. See: Gilbert v. California, 388 U.S.  263, 266-67 (1967).
• Compelling defendant to provide hair sample. See: United States v. Dougall, 919 F.2d 932, 935 (5th Cir. 1990).
• Compelling defendant to provide fingerprints. See: Kyger v. Carlton, 146 F.3d  374, 381 (6th Cir. 1998).
• Compelling defendant to have his or her teeth and gums examined. See: United States v. Maceo, 873 F.2d 1, 5-6 (1st Cir. 1989).
• Compelling defendant to submit to blood-alcohol. See: Schmerber v. California, 384 U.S.  757, 765 (1966).
• Compelling defendant to submit to breathalyzer. See: Deering v. Brown, 839 F.2d  539, 541-44 (9th Cir. 1988).
• Compelling defendant to submit to urine tests. See: United States v. Edmo, 140 F.3d 1289, 1292-93 (9th Cir. 1998).
• Compelling prison inmate to provide DNA sample. See: Shaffer v. Saffle, 148 F.3d  1180, 1181 (10th Cir. 1998).

The Supreme Court established the guide for determining a Fifth Amendment violation more than 50 years ago when it held that the individual must have a reasonable belief that the compelled testimony would either support a conviction or provide a link in the chain of evidence that would lead to a conviction. See: Hoffman v. United States, 341 U.S. 479, 486 (1951). See also: United States v. Hubbell, supra, 530 U.S. at 39.

Once a criminal defendant invokes the Fifth Amendment privilege and refuses to testify, the prosecutor, the judge, or a co-defendant’s counsel are prohibited from making adverse comments about the refusal to testify. See: Griffin v. California, supra, 380 U.S.  at 611-12 (1965). See also: United States v. Al-Muqsit, 191 F.3d  928, 937  (8th Cir. 1999).

Further, a defendant enjoys a right to have the trial judge instruct the jury that no inference of guilt can be drawn by a defendant’s decision not to testify. See: Carter v. Kentucky, 450 U.S.  288, 305 (1981). But once a defendant elects to testify, he must do so honestly and be prepared to answer questions on cross-examination reasonably related to matters put at issue through his testimony. See: Brogan v. United States, 522 U.S.  398, 404 (1998); Mitchell v. United States, 526 U.S.  314, 321 (1999),

WHEN SHOULD AN ATTORNEY ADVISE DEFENDANT TESTIFY?

A defense attorney should advise his client to testify in two situations: First, when the attorney is convinced the defendant will testify truthfully; and, second, when the attorney is convinced the defendant’s testimony will contribute to the defense strategy.

A criminal defendant has an absolute right to testify in his own defense but this right is premised on the defendant’s duty to testify honestly. This right/duty frequently creates ethical dilemmas for a defense attorney. For example, the defendant informs counsel that he will testify about certain matters that counsel knows are false. What must counsel do? The Supreme Court requires that counsel try to prevent the defendant from committing perjury. Counsel’s professional duty to prevent perjured testimony from being introduced into the trial proceedings does not violate a defendant’s Sixth Amendment guarantee to effective representation. See: Nix v. Whiteside, 475 U.S. 157, 166-71 (1986). The following are examples where defense attorneys were forced to prevent untruthful testimony by the defendant:

• Counsel provided effective assistance by threatening to leave courtroom if defendant committed perjury. See: Emery v. Johnson, 139 F.3d  191, 198-99 (5th Cir. 1997).
• Counsel provided effective assistance by refusing to discredit truthful testimony because defendant not entitled to a trial “at which the truth will be undermined.” See: Liegakos v. Cooke, 106 F.3d 1381, 1387 (7th Cir. 1987).
• Counsel provided effective assistance by reporting to court his belief that the defendant would commit perjury after counsel had tried to convince defendant not to perjure himself. See: Jackson v. United States,  928 F.2d 245, 247-48 (8th Cir. 1991); United States v. Litchfield, 959 F.2d  1514, 1518 (10th Cir. 1992).

 

But the Fourth Circuit drew a strong line in the proverbial sand in United States v. Midgett in which counsel threatened to withdraw from the case if the defendant could not provide corroborative evidence for his testimony. See: 342 F.3d  321 (4th Cir. 2003). The appeals court said this amounted to ineffective assistance because counsel effectively forced the defendant to choose between his right to testify and right to counsel. Id., at 326.

The issue of when a defendant can contribute to the defense is more complex. For example, a defendant may have truth on his side but a long criminal history. The prosecution will exploit a criminal history to its advantage. The perils of a criminal history background are often too great for a defense attorney to traverse; therefore, he can not risk allowing the defendant to testify. Such strategic decisions must be made on a case-by-case basis involving a number of variables: the nature and extent of the defendant’s criminal history; the strength/weakness of the prosecution’s case; the defendant’s verbal ability to convey his side of the story while being able to withstand withering cross-examination; and the nature of the testimony by witnesses presented by the defense before a decision is made about the defendant testifying.

Famed Houston criminal defense attorney Dick DeGuerin recently faced these variables in the murder trial of David Temple. Temple was convicted on November 15 for the shotgun slaying of his eight-month pregnant wife. Temple testified at trial in his own defense. Following the jury verdict, a number of jurors informed DeGuerin that they had been influenced by Temple’s testimony as well as the testimony of his family members. On at least one occasion prosecutor Kelly Siegler caught Temple in conflicting testimony.

The prosecution’s theory was that Temple killed his wife in order to marry his mistress with whom he had been romantically involved months before his wife was killed. Temple ultimately married the mistress following his wife’s murder. The mistress/second wife testified at Temple’s trial, saying that he had pledged his love to her before the murder of his wife. Under cross-examination, Temple testified that he had never made such a pledge to the mistress.

It was that contradiction, and the general manner in which Temple presented the rest of his testimony, that prompted the jurors to tell DeGuerin that they did not believe his client.

“If a jury does not believe a testifying defendant, it doesn’t matter what the rest of the evidence shows,” said veteran Houston defense attorney Jack Zimmerman after the trial.

DeGuerin obviously believed that his client was innocent and that he needed to convey that fact personally to the jury from the witness stand. That was a legitimate strategical decision made prior to the trial. But the tactic apparently failed after Temple’s family performed so badly on the witness stand before Temple testified. Temple’s own follow-up poor performance ultimately convinced the jury that Temple was lying about not killing his wife and that his family were lying to protect him. That is the inherent danger of allowing the defendant to testify.

CONCLUSION

The Supreme Court in Ullmann v. United States, 350 U.S. 422 (1956) stressed the constitutional relevance and societal necessity of the privilege against self-incrimination:

“It is relevant to define explicitly the spirit in which the Fifth Amendment's privilege against self-incrimination should be approached. This command of the Fifth Amendment (‘nor shall any person * * * be compelled in any criminal case to be a witness against himself * * *’) registers an important advance in the development of our liberty – ‘one of the great landmarks in man's struggle to make himself civilized.' Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregardful of the interests of justice. The difference between them and those who deem the privilege an obstruction to due inquiry has been appropriately indicated by Chief Judge Magruder:

“‘Our forefathers, when they wrote this provision into the Fifth Amendment of the Constitution, had in mind a lot of history which has been largely forgotten to-day.’ See VIII Wigmore on Evidence (3d ed. 1940) s 2250 et seq.; Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1 (1949). They made a judgment, and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused. The privilege against self-incrimination serves as a protection to the innocent as well as to the guilty, and we have been admonished that it should be given a liberal application … If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion’.” Id., 350 U.S. at 426-28.

These observations were made by the Supreme Court more than fifty years ago. They are as applicable today as they were five decades ago. The threat of terrorism, and America’s determination to wage a global “war” to eradicate it places the Fifth Amendment privilege against self-incrimination on the endangered constitutional rights list. The Church (and the State) during the Inquisition waged war on heresy; it was a crime worse than terrorism, and the Bishop and the King justified any means necessary to stamp it out. The proponents of today’s war on terrorism use the same justifications to stamp out terrorists. The end result is that the crusade against evil becomes more evil than evil itself. History remembers the Inquisition but pays little attention to heresy. The same will prove true with the “war on terror.”