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BasicsState v. Smith, 172 Ohio App. 3d 735, 2007-Ohio-6355 Judges comments at sentencing indicated appellant received an increased sentence because he had chosen to testify against his brother. Reversed.

Chavez v. Martinez (2003), 123 S.Ct. 1994 -- Statements compelled by police interrogation may not be used against a defendant in a criminal trial, but the Self-Incrimination Clause is not violated until such use is intended. This means at least the commencement of legal proceedings. Victim of brutal interrogation at a hospital was not prosecuted, but sought damages in a 1983 action.

Hiibel v. Sixth Judicial District Court of Nevada (2004), 124 S.Ct. 2451 -- Nevada statute requiring the subject of a Terry stop to furnish a name survives Fourth and Fifth Amendment challenges. Unlike the Texas statute in Brown v. Texas (1979), 443 U.S. 47 there has to be reasonable suspicion the subject was involved in criminal activity. Unlike the statute in Kolender v. Lawson (1983), 461 U.S. 352 requiring "credible and reliable" identification, the subject only had to provide a name. The Fifth Amendment claim is fielded by reserving for another time how to address situations where "furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense."

State v. Echols (1998), 128 Ohio App. 3d 677, 701-702 -- The Fifth Amendment right to counsel guarantee rests on not being forced to become a witness against oneself. The Sixth Amendment right to counsel is premised on the guarantee to the accused to have counsel for his defense.

Holt v. United States (1910), 218 U.S. 245 -- The Fifth Amendment does prevent a defendant being directed to put on a blouse for identification purposes. At p. 251: "...(T)he prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material."

United States v. Balsys (1998), 524 U.S. 666 -- Concern about possible prosecution in a foreign country is beyond the scope of the Fifth Amendment. Resident alien did not want to answer questions concerning WWII activities in Lithuania.

Lawn v. United States (1958), 355 U.S. 339 -- An indictment, valid on its face, is not subject to challenge on the basis that the grand jury acted on information obtained in violation of the defendant's privilege against self-incrimination. But see United States v. Calandra (1974), 414 U.S. 338 at 346: "...the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. Rather, the grand jury may override a Fifth Amendment claim only if the witness is granted immunity co-extensive with the privilege against self-incrimination. Kastigar v. United States (406 U.S. 441) Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him. Boyd v. United States 116 U.S. 616, 633-635 (1886). Cf. Couch v. United States, 409 U.S. 322 (1973).

United States v. Licavoli (9th Cir. 1979), 604 F. 2d 613, 623 --Waiver of the Fifth Amendment privilege when testifying before a grand jury does not constitute waiver of the privilege at trial or in other proceedings. Also see United States v. Cain (1st Cir. 1976), 544 F. 2d 113, 117; United States v. Housand (2d Cir. 1977), 550 F. 2d 818, 821 fn. 3; United States v. Johnson (1st Cir. 1973), 488 F. 2d 1206; United States v. Lawrenson (4th Cir. 1963), 315 F. 2d 612.

Shrader v. Equitable Life (1983), 10 Ohio App. 3d 277 -- (1) A party to a civil proceeding does not waive his Fifth Amendment privilege merely by bringing the action. (2) The privilege is waived to the extent questions on direct examination are answered, though when a party is called as on cross the extent of the waiver is more narrowly defined.

Marchetti v. United States (1968), 390 U.S. 39 -- Defendant was prosecuted for failure to register and pay occupational tax on gambling proceeds. Compliance would have generated records which would have been incriminating. Fifth Amendment privilege available in these circumstances. Also see Grosso v. United States (1968), 390 U.S. 62; Shapiro v. United States (1948), 335 U.S. 1.

State v. Wardlow (1985), 20 Ohio App. 3d 1 -- Prosecution of a mother under the endangering children statute for failure to report conduct amounting to a felony violation of other portions of the statute was constitutionally defective as it would have amounted to self-incrimination.

In re Knight (1999), 135 Ohio App. 3d 172 -- Child welfare agency called mother as its first witness in a neglect case. Held to be a Fifth Amendment violation as testimony she might provide could subject her to prosecution for child endangering.

McKune v. Lile (2002), 122 S.Ct. 2017 -- Inmate brought 1983 action contending his Fifth Amendment rights were abridged by worsening the terms of confinement upon refusal to admit prior offenses as a part of a prison rehabilitation program. No violation found, even though admissions might lead to further prosecution for uncharged incidents. Admission of responsibility serves a valid penological objective. Loss of privileges deemed not to be compulsion encumbering the constitutional right. 4-1-4 decision. Four dissenters and concurring justice believe compulsion for Fifth Amendment purposes is broader than the "atypical and significant hardship" standard adopted in evaluating due process claims concerning prison conditions.

Mitchell v. United States (1999), 526 U.S. 314 -- Pursuant to Federal Rule of Criminal Procedure 11, entry of a guilty plea does not operate as a waiver of the defendant's Fifth Amendment privilege. Nor may the defendant's silence provide the basis for adverse inferences in determining factual issues at the sentencing hearing.

State v. Cook (1983), 11 Ohio App. 3d 237 -- When a potential defendant is called to testify before a grand jury, Miranda type warnings must be given. If during questioning the witness asserts his privilege against self-incrimination, that decision must be honored unless immunity is granted or an effective waiver is obtained. Grand jury testimony received from a putative defendant without such warning may not be used against him in a subsequent prosecution.

State v. Jackson (1993), 86 Ohio App. 3d 29, 31-32 -- "The right against self-incrimination applies differently depending upon whether it is the witness or the defendant who invokes the Fifth Amendment...Once the defendant has elected to waive the privilege, he may be questioned regarding all matters that were covered on direct and may be subject to searching examination for impeachment purposes...The accused may be cross-examined as to the facts in issue, including his connection with other similar transactions...Although the defendant has taken the stand, he has not entirely waived his Fifth Amendment rights...However, the mere questioning which elicits the assertion of Fifth Amendment rights is not error. Error occurs when the questioning is persistent and the answers are preordained..." (citations omitted)

State v. Taylor (1992), 80 Ohio App. 3d 601 -- At initial appearance defendant was told counsel would be appointed. Subsequently, he mistook a detective for appointed counsel and made admissions. Held that regardless of the defendant's or detective's claims concerning this contact, any interrogation once the right to counsel had been invoked was improper unless initiated by the defendant. Minnick v. Mississippi (1990), 498 U.S. 146, applied.

United States v. Kordel (1970), 397 U.S. 1 -- A corporation does not have a Fifth Amendment privilege, thought its officers and employees may exercise their privilege as individuals.

State v. Lackey (1981), 3 Ohio App. 3d 239 -- Where police officers relying on broadcast would have been entitled to conduct a Terry frisk for weapons, asking the subject first where the gun was did not violate privilege against self-incrimination.

Ohio v. Reiner (2001), 532 U.S. 17 -- A witness has a valid Fifth Amendment privilege, even though they maintain innocence of any wrongdoing. "...(T)ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth."

State v. Childress (1990), 66 Ohio App. 3d 491 -- Constitutional (Miranda type) warnings are sometimes required when a witness appears before a grand jury. Witness called before the same grand jury a second time, and charged with perjury on that basis, should have been advised of her privilege to refuse to answer questions which might further incriminate her.

State v. Dinsio (1964), 176 Ohio St. 460 -- Syllabus: "In a criminal case, where a claim of a witness that he can not be compelled to testify as a witness because of the privilege of immunity from self-incrimination is properly established, it is error prejudicial to the defendant for the court to permit counsel for the state, by continued questioning of the witness, which questions go unanswered, to get before the jury innuendoes and inferences of facts, conditions and circumstances which the state could not get before the jury by direct testimony of the witness."

State v. Kirk (1995), 72 Ohio St. 3d 564 -- The right to compulsory process is not denied when the court prevents a witness who intends to exercise his Fifth Amendment privilege from taking the stand, if that witness will exercise the privilege and offer no testimony. Columbus v. Cooper (1990), 49 Ohio St. 3d 42, limited. The defendant is entitled to a an instruction that the jury is to draw no inference from the absence of the witness because the witness was not available to either side. Also see State v. Branham (1995), 104 Ohio App. 3d 355, 360-361.

United States v. Smith (C.A.D.C. 1973), 478 F. 2d 976 -- It was improper for the prosecutor to advise a defense witness that he should confer with independent counsel before testifying to determine whether to exercise his Fifth Amendment privilege, since if he testified as indicated by others, he might be prosecuted for carrying a concealed weapon, obstructing justice and as an accessory. If advice as to the privilege was required, it should have come from the bench. Compare State v, Schaub (1976), 46 Ohio St. 2d 25.

State v. Miller (1997), 122 Ohio App. 3d 111 -- Trial court erroneously refused to allow the defendant to reopen his case when a subpoenaed witness appeared at the courthouse after the jury had been instructed, but before deliberations had begun. Though the witness indicated she would exercise her Fifth Amendment privilege to any question other than her name, the trial had evolved in such a manner that her nonappearance created strong inferences against the defense.

Griffin v. California (1965), 380 U.S. 609 -- The prosecutor may not comment upon a defendant's failure to testify as to matters which he could reasonably be expected to deny or explain. Compare Article I, Sec. 10 of the Ohio Constitution which allows the parties to comment upon the exercise of the privilege against self-incrimination by a witness. Except as applied to defendants, this continues in effect.

United States v. Robinson (1988), 485 U.S. 25 -- There is no violation of a defendant's Fifth Amendment privilege when a prosecutor's assertion in argument that the defendant could have taken the stand was a "fair response" to assertions by defense counsel that the government had unfairly denied him an opportunity to explain his actions. Also see State v. Washington (June 20, 1978), Franklin Co. App. No. 77AP-947, unreported (1978 Opinions 1619, 1627-1630); State v. Auerbach (1923), 108 Ohio St. 96; United States v. Tasto (5th Cir. 1978), 586 F. 2d 1068.

Carter v. Kentucky (1981), 450 U.S. 288 -- A defendant is entitled to a jury instruction that no adverse inferences are to be drawn from his exercise of his right not to testify. Also see State v. Fannings (1982), 1 Ohio St. 3d 19.

State v. Lane (1976), 49 Ohio St. 2d 77, 86 -- Griffin viewed as prohibiting only direct comment upon the accused's failure to testify.

State v. Neal (January 23, 1996), Franklin Co. App. No. 95APA05-542, unreported (1996 Opinions 177, 203) -- Mention in voir dire that defendant might or might not testify not found to be a Griffin violation.

Doyle v. Ohio (1976), 426 U.S. 610 -- Use of post arrest silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. For additional cases see Admissions and Confessions.

State v. Nichols (June 26, 1979), Franklin Co. App. No. 79AP-57, unreported (1979 Opinions 1699) -- It is improper to ask a defendant why he refused to sign a constitutional rights waiver form. Also see State v. Stephens (1970), 24 Ohio St. 2d 76; Gillison v. United States (1968), 399 F. 2d 586. Compare State v. Perryman (1976), 49 Ohio St. 2d 14, 20 -- Waiver made, but privilege asserted after detectives told defendant what co-conspirators had said.

State v. Saunders (1994), 98 Ohio App. 3d 355 -- Comment that the defendant did not tell the police she acted in self-defense found to be a Fifth Amendment violation. See Doyle v. Ohio (1976), 426 U.S. 610. Since was first mentioned in closing argument, do not reach issue whether or not defendant had been advised of Miranda rights before elected to remain silent. See Fletcher v. Weir (1982), 455 U.S. 603.

In re Billman (1993), 92 Ohio App. 3d 279 -- Juvenile Court dependency finding reversed and remanded where parent had been compelled to testify despite asserting her Fifth Amendment privilege.

In re Johnson (1996), 106 Ohio App. 3d 38 -- Error to permit prosecutor to ask unrepresented juvenile if he would stipulate prior conviction without first advising him of his Miranda rights.

Doe v. United States (1988), 487 U.S. 201 -- Order directing suspect to sign forms consenting to release of foreign bank documents not contrary to the Fifth Amendment. Signing was not the equivalent of testimonial communication.

Andressen v. Maryland (1976), 427 U.S. 463 -- Seizure of business records containing statements defendant had voluntarily reduced to writing was not a violation of the Fifth Amendment.

State v. Aronson (1993), 91 Ohio App. 3d 714 -- Indicted defendants successfully moved to quash grand jury subpoenas for business records of bingo operation which had not been located during the execution of search warrants. While as custodians of the records they could be compelled to produce them, the state was required to first make some showing that the requested documents were in the subpoenaed party's possession or subject to his control. Otherwise, compliance with the subpoena could amount to self-incrimination.

Schmerber v. California (1966), 384 U.S. 757 -- The Fifth Amendment privilege does not extend to the drawing of a blood sample for purposes of chemical analysis. Also see State v. Sapsford (1983), 22 Ohio App. 3d 1 (dental casts, photos, wax impressions).

South Dakota v. Neville (1983), 459 U.S. 553 -- Admission of evidence that the defendant refused to submit to a blood alcohol test did not violate the Fifth Amendment, though the defendant had only been warned that under the state's implied consent law, refusal could lead to a loss of his license. Also see State v. Starnes (1970), 21 Ohio St. 3d 38 -- Implied consent law does not violate Fourth or Fifth Amendments.

United States v. Wade (1967), 388 U.S. 218 -- Compelling an accused to participate in a lineup does not violate the privilege against self-incrimination.

Gilbert v. California (1967), 388 U.S. 263 -- Handwriting exemplars are not subject to the Fifth Amendment privilege against self-incrimination. Also see State v. Flinn (1982), 7 Ohio App. 3d 294; United States v. Mara (1973), 410 U.S. 19 (exemplar may be compelled pursuant to grand jury subpoena).

United States v. Dionisio (1973), 410 U.S. 1 -- The compelled display of identifiable physical characteristics infringes no interest protected by the Fifth Amendment. A person may be subpoenaed to appear before a grand jury and furnish a voice exemplar. Also see State v. Sutton (1979), 64 Ohio App. 2d 105.

State v. Naylor (1980), 70 Ohio App. 2d 233 -- Headnote: "Where the defendant is required to repeat, over objection, words and sentences used during the progress of a crime by one of the perpetrators of that criminal act, and where the defendant is required to speak those words and sentences in the presence of the jury for the express purpose of allowing the victim of the crime to arrive at an in-court identification of the speaker, such a requirement is violative of the defendant's rights under both the Fifth and Fourteenth Amendments to the United States Constitution."

In re Grand Jury Directive to Creager (1993), 89 Ohio App. 3d 672 -- Defendant was properly found in contempt for refusal to provide a handwriting exemplar. The privilege against self-incrimination under the Ohio Constitution is identical to that found in the Fifth Amendment.

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