“No person . . . shall be compelled in any criminal case to be a witness against himself[.]” US Const, Am V; see also Const 1963, art 1, § 17. The Fifth Amendment is applicable to the states through the Fourteenth Amendment. Pennsylvania v Muniz, 496 US 582, 588 n 5 (1990). A person’s Fifth Amendment privilege against self-incrimination applies in both criminal and civil proceedings. Phillips v Deihm, 213 Mich App 389, 399-400 (1995). “The privilege against self-incrimination not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also permits 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.” Id.
The right against self-incrimination protects a person from incriminating himself or herself for a crime already committed. People v Bassage, 274 Mich App 321, 325 (2007). Because a defendant commits a current crime when he or she decides to present false testimony (perjury), the Fifth Amendment does not apply to the perjured testimony. Id. at 326. The Court explained:
“The bedrock for this principle is, we hope, unsurprising: providing false information is a course of action not authorized by the Fifth Amendment. Thus, although he was never informed of his right against self-incrimination, defendant, by providing false testimony, took a course of action that the Fifth Amendment gave him no privilege to take. If the citizen answers the question, the answer must be truthful. Accordingly, we hold that the prosecutor had no obligation to advise defendant of his Fifth Amendment right against self-incrimination, because that right was not implicated by defendant’s decision to commit perjury.” Bassage, 274 Mich App at 325-326 (quotation marks, alteration, and citations omitted).
If the court determines that it is necessary to advise the witness of his or her Fifth Amendment rights, the advice should be given outside the presence of the jury. People v Avant, 235 Mich App 499, 512-517 (1999). A trial court must follow an established procedure when it discovers that a potential witness plans to invoke a testimonial privilege. People v Paasche, 207 Mich App 698, 709 (1994).1
“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the amendment does not preclude the inference where the privilege is claimed by a party to a civil cause.” Phillips v Deihm, 213 Mich App 389, 400 (1995).
1.Individuals
“[A] defendant in a civil action may assert the privilege against self-incrimination in the answer to the complaint when he or she believes that responding to particular paragraphs or allegations in the complaint calls for an incriminating response.” Huntington Nat’l Bank v Ristich, 292 Mich App 376, 384 (2011). However, “[a] defendant must answer the allegations in the complaint that he or she can and make a specific claim of privilege to the rest. A defendant’s proper invocation of the privilege in an answer will be treated as a specific denial.” Id. at 387.
By invoking the Fifth Amendment, a person cannot be forced to answer any question that would “furnish a link in the chain of evidence needed to prosecute[.]” PCS4LESS, LLC v Stockton, 291 Mich App 672, 677 (2011) (quotation marks and citation omitted). “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Id. at 677-678 (quotation marks and citation omitted). “A court should bar a claim of privilege under the Fifth Amendment only when the answer cannot possibly be incriminating.” Id. at 678 (the trial court’s order that defendants either produce a software program or submit affidavits denying possession of the program violated the Fifth Amendment privilege against compelled self-incrimination because compliance with the order might have “furnish[ed] a link in the chain of evidence needed to prosecute”).
2.Organizations
Organizations are not generally protected by the Fifth Amendment privilege against self-incrimination. PCS4LESS, LLC v Stockton, 291 Mich App 672, 679 (2011). In addition, “the custodian of an organization’s records may not refuse to produce the records even if those records might incriminate the custodian personally,” if the custodian holds the records in a representative capacity. Id. at 679-680. However, if the custodian holds the records in a personal capacity, the Fifth Amendment privilege applies. Id. at 681. In PCS4LESS, LLC, the Court of Appeals identified a three part test a court may use to determine whether the privilege against self-incrimination may be used “to prevent the production of an organization’s documents:
1. Are the documents the records of the organization rather than those of the individual who has possession of them?
2. Does the custodian hold the records in a representative, rather than a personal, capacity?
Assuming affirmative answers, in the case of a corporation the inquiry is ended because of the special nature of the corporate form and the state’s reservation of visitatorial powers over corporations. In the case of non-corporate organizations, however, a third question arises:
3. Does the organization have an established institutional identity which is recognized as an entity apart from its individual members?” PCS4LESS, LLC, 291 Mich App at 681 (holding that the trial court’s order for a corporation to either produce a software program or submit an affidavit denying possession of the program did not violate the Fifth Amendment privilege against compelled self-incrimination because the privilege does not apply to organizations) (quotation marks and citation omitted).
C.Criminal Cases2
The privilege against self-incrimination is not waived by a defendant’s guilty plea, and remains available at sentencing. Mitchell v United States, 526 US 314, 325 (1999).
“‘Use’ immunity protects a witness only from the prosecutorial use of compelled testimony. A witness granted ‘use’ immunity may still be prosecuted for a crime in which he was involved and to which his immunized testimony relates.” People v Jones, 236 Mich App 396, 399 n 1 (1999). That is, while a coerced confession is inadmissible in a criminal trial, it does not bar prosecution. Kastigar v United States, 406 US 441, 461 (1972).
1.Invoking Privilege
The privilege against self-incrimination “is held by the witness. However, the . . . constitutional privilege against self-incrimination must not be asserted by a witness too soon, that is, where there is no reasonable basis for a witness to fear incrimination from questions which are merely preliminary.” People v Dyer, 425 Mich 572, 578-579 (1986). “Thus, ‘a trial court may compel a witness to answer a question only where the court can foresee, as a matter of law, that such testimony could not incriminate the witness.’” People v Steanhouse, 313 Mich App 1, 19-20 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017),3 quoting Dyer, 425 Mich at 579. A witness had a reasonable basis to fear incrimination from questioning where the defendant’s statements to police, theory of the case, and testimony at trial indicated that the witness “may have been intimately associated with the criminal transaction or involved in the commission of the crimes,” and the prosecutor was “unable to predict whether charges would be brought against [the witness] after he testified[.]” Steanhouse, 313 Mich App at 20.
When a testifying witness asserts his or her Fifth Amendment privilege, prejudice may result to the defendant because the jury may illogically infer guilt. People v Poma, 96 Mich App 726, 731 (1980). For this reason, it is improper to call a witness knowing he or she will assert the Fifth Amendment privilege. People v Paasche, 207 Mich App 698, 708-709 (1994). The Poma Court explained how to avoid prejudice and protect the defendant’s right to a fair trial:
“When the court is confronted with a potential witness who is intimately connected with the criminal episode at issue, protective measures must be taken. The court should first hold a hearing outside the jury’s presence to determine if the intimate witness has a legitimate privilege[.] . . . This determination should be prefaced by an adequate explanation of the self-incrimination privilege so the witness can make a knowledgeable choice regarding assertion. . . . We do not believe that the burden of comprehending the privilege should rest with witnesses; the responsibility of informing must be the court’s.” Poma, 96 Mich App at 732 (citations omitted).
A criminal suspect generally must “expressly invoke the privilege against self-incrimination in response to [noncustodial police questioning] . . . in order to benefit from it,” because “[a] suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.”4 Salinas v Texas, 570 US 178, 181, 188 (2013) (plurality opinion). Accordingly, where “[the defendant] voluntarily answered the [noncustodial] questions of a police officer who was investigating a murder[, b]ut . . . balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match [the defendant’s] shotgun,” the prosecution’s argument at trial “that [the defendant’s] reaction to the officer’s question suggested that he was guilty” did not violate the Fifth Amendment privilege against self-incrimination, because the petitioner had failed to expressly invoke the privilege. Id. at 181.
2.Admissibility of Statements
Generally, a defendant’s statement is admissible as nonhearsay under MRE 801(d)(2), or under the statement against interest exception to the hearsay rule, MRE 804(b)(4), if the declarant is unavailable as defined in MRE 804(a). A defendant may be unavailable to testify by exercising their constitutional right to remain silent.
MRE 410(a) precludes the admission of statements made during plea discussions or in connection with a plea that was withdrawn or vacated.5 However, a defendant’s voluntary testimony at a prior proceeding, including a guilty plea proceeding involving an unrelated crime, is generally admissible, “absent an indication that the prior testimony was given under compulsion.” People v Plato, 114 Mich App 126, 134-135 (1981).
A statement can also be used for impeachment under MRE 613(b), the rule governing the use of a prior inconsistent statement when the statement is offered to prove inconsistency, and not to show the truth of the matter asserted. See People v Jenkins, 450 Mich 249, 256 (1995) (witness’s claim that he did not remember making prior inconsistent statement was sufficient foundation for the prosecution to introduce extrinsic evidence of prior statement to impeach witness, but not to prove the contents of the statement); People v Steanhouse, 313 Mich App 1, 29-30 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017)6 (holding that where a witness’s “police statement implicating defendant in [a crime] was admissible only to impeach [the witness’s] testimony, the prosecution’s use of the statement as substantive evidence of defendant’s guilt, and the trial court’s instruction[ that the jury could consider prior inconsistent statements as substantive evidence], constituted plain error,” but nevertheless concluding that “in light of the extensive evidence admitted at trial linking defendant to the [crime], . . . these errors did not prejudice defendant”).
Committee Tip:
Confusion sometimes emerges when a prior out-of-court inconsistent statement is attempted to be used to show inconsistency and as substantive evidence. The latter purpose is allowed but only if there is a basis under the rules to overcome hearsay or other objections.
D. Child Protective Proceedings
“[A] parent’s constitutional right against compelled self-incrimination bars a court in child protective proceedings from requiring that parent, as a condition of reunification, to admit to having abused an unrelated child.” In re Blakeman, 326 Mich App 318, 331 (2018). “The privilege may be invoked when criminal proceedings have not been instituted or even planned.” Id. at 332. In Blakeman, compulsion existed even where “respondent initially waived his Fifth Amendment right, testified at the trial, and was then later compelled to retract his claim of innocence and incriminate himself.” Id. at 335.7
A “respondent-father was not compelled to provide an incriminating statement in violation of the Fifth Amendment” when it terminated his parental rights to his minor child after he repeatedly “denied abusing drugs despite his positive drug screens, and the trial court noted his refusal to acknowledge his substance-abuse problem in concluding he had not demonstrated adequate progress in overcoming his addiction.” In re Simpson, ___ Mich App ___, ___ (2024). In Simpson, the respondent-father asserted that “he should not have been required to admit to drug use in order to be granted reunification . . . .” Id. at ___ (rejecting argument that “the trial court violated his rights by giving him the choice between admitting to drug use, therefore exposing himself to criminal liability, or denying drug use, which would result in termination of his parental rights”). The Simpson Court distinguished In re Blakeman, 326 Mich App 318 (2018), where “the respondent was given the extreme and detrimental Hobbesian choice between admitting to a criminal act of child abuse or continuing to be separated from his children and eventually losing his parental rights.” Simpson, ___ Mich App at ___ (cleaned up). According to the Court, the respondent-father in Simpson “was not comparably compelled to incriminate himself.” Id. at ___. Instead, in Simpson, the issue “was whether respondent-father was able to overcome his substance-abuse issues in order to be reunified with [his minor child], and the trial court’s overriding concern was not with respondent-father admitting to drug use but with him addressing the substance-abuse problem that the evidence overwhelmingly showed.” Id. at ___ (noting that “the trial court’s decision to terminate respondent-father’s parental rights focused on the fact that he was unable to demonstrate improvement with overcoming addiction, a barrier to reunification”).