Old Wine in a New Bottle: Supreme Judicial Court Decision Reiterates Broad Scope of Fifth Amendment Protection

The Massachusetts Supreme Judicial Court (“SJC”) on Friday, October 10, 2014 decided Commonwealth v. Jason LeClair, No. SJC-11469, a Fifth Amendment case.  It did not make new law but reiterated that the scope of the Fifth Amendment privilege is broad and liberally construed, something that many lawyers, including prosecutors, and many judges, including those in this case, do not seem to understand.

Sheehan was a witness in a domestic A&B case against LeClair, the defendant, and was called by the Commonwealth.  He refused to answer questions by the defense about his consumption of drugs at the time of the incident, asserting his Fifth Amendment privilege.  The prosecutor represented that the Commonwealth was not “interested” in prosecuting him and not “likely” to do so.  On that basis the judge concluded that there was no substantial prospect that his answers could lead to his prosecution and ordered Sheehan to answer the questions.  When he continued to refuse to answer, the judge found him in criminal contempt and sentenced him to a 90-day prison term.  The sentence, and the trial, were suspended pending appeal.  The SJC took the case on its own initiative.

What is notable about this case is that the SJC felt it necessary to reiterate long-established standards, which should have been familiar and clearly justified the witness’ assertion of privilege:

Because the privilege against self-incrimination is “a fundamental principle of our system of justice,” it “is to be construed liberally in favor of the claimant.” Commonwealth v. Borans, 388 Mass. 453, 455 (1983). Accordingly, “a refusal to testify on Fifth Amendment grounds must be upheld unless it is ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” Id. at 456, quoting Hoffman v. United States, 341 U.S. 479, 488 (1951).

Questions about illegal drug use, the Court noted, were well within the protection provided by this standard.

The Court went on to address the Commonwealth’s assertion that the witness’ testimony alone would not suffice to prosecute him, and highlighted a significant protection the Fifth Amendment affords:

Moreover, assuming, as the Commonwealth argues, that the confession to possession or use of an illicit substance is not alone sufficient to support a conviction, we nonetheless apply broad and “highly protective” standards to determine whether a claim of privilege is justified. Commonwealth v. Martin, supra at 502. Any admission by Sheehan to drug use on the night in question might have been used in questioning others concerning Sheehan’s drug use on that night, or to provide leads for a subsequent criminal investigation. “The privilege ‘not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.'” Commonwealth v. Borans, supra at 456, quoting Hoffman v. United States, supra at 486.

(Italics added).  Many judges and lawyers do not understand that the privilege extends to answers that would provide “a link in the chain of evidence” not just confessions to crime.  Indeed, in Hoffman, the Supreme Court upheld an assertion of privilege to a question to the witness about his occupation, because it might have linked him to illegal gambling.  In another case, Malloy v. Hogan, 378 U.S. 1 (1964) the Supreme Court reasoned that a witness who had pled guilty to gambling charges properly refused to answer questions designed to learn the identity of the witness’ employer in the gambling operation, because “if this person were still engaged in unlawful activity, disclosure of his name might furnish a link in a chain of evidence sufficient to connect the petitioner with a more recent crime for which he might be prosecuted.”  378 U.S. at 13.  In other words, naming his employer alone would not incriminate the witness, but it could, combined with other facts, do so, and that was enough to justify the witness’ refusal to answer.

Finally, the SJC rejected reliance on the prosecutor’s disclaimer of intent to prosecute as grounds to compel the witness’ testimony, noting “[w]e have not embraced a rule that ‘would require the trial court, in each case, to assess the practical possibility that prosecution would result from incriminatory answers.’ United States v. Miranti, 253 F.2d 135, 139 (2d Cir. 1958).”

This decision breaks no new ground, but it makes clear that the scope of the Fifth Amendment privilege is broadly construed, and that it cannot be defeated if there is any possibility of prosecution.  The witness cannot be compelled to answer if there is.