Category Archives: Fifth Amendment

Lockhart v. Nelson

488 U. S. 33

November 14, 1988

Criminals could be sentenced to extra time if they could be proved ‘habitual offenders’ by the introduction of four prior convictions. Four prior convictions were offered for burglar Johnny Lee Nelson, but it was later discovered that one of those convictions had been pardoned by Governor Orval Faubus. Nelson argued that he could not be retried because of the Double Jeopardy clause. A case called Burks v. United States held that Double Jeopardy applied when a sentence was overturned on the basis of insufficient evidence. The government argued that introducing the pardoned conviction was a simple trial error, and that the rule against Double Jeopardy for insufficient evidence did not apply.

The Court held 6-3 that introducing the pardoned conviction was a trial error, and that a new trial was possible. Rehnquist stated that Burks was about protecting suspects when the government had totally failed to prove its case in the original trial. Here, a seemingly valid conviction had been introduced at trial, and Nelson’s sentence was later overturned because that conviction’s admission was in error. Rehnquist said that simple errors in admission of evidence were not the same as a simple lack of evidence, erroneous or not. He thus allowed the government to retry Nelson, and introduce four valid prior convictions.

Marshall, joined by Brennan and Blackmun, dissented. Marshall stressed that pardons totally expunge the conviction. Thus, the admission of that conviction into evidence was effectively like admitting a blank piece of paper into evidence. That, he contended, would certainly be a simple instance of insufficient evidence. The government needed to produce four prior convictions, and they produced only three. Marshall also complained that the majority was hasty and conclusory in its opinion, quite in contrast to the careful consideration usually found in the Court’s other Double Jeopardy cases.


Pennsylvania v. Bruder

488 U. S. 9

October 31, 1988

A police officer stopped a car that was driving erratically and ran a red light. During the stop, the police officer observed signs of intoxication, and asked if the driver had been drinking. He answered in the affirmative, and subsequently failed a sobriety test. The driver was then arrested and given the Miranda warning. The issue was whether the officer’s question about drinking before the arrest was unconstitutional without a prior Miranda warning.

The Supreme Court ruled 7-2 that the officer’s question was Constitutionally sound. In a per curiam opinion, the Court said that the facts of the case were almost identical to those in Berkemer v. McCarty. In Berkemer, the Court had ruled that questioning during a traffic stop was not custodial investigation, and did not require prior administration of the Miranda warning. The same principle applied in the case at hand.

Marshall filed his customary dissent against any and all summary judgments by the Court. Stevens, joined by Marshall, whined that certiorari should not have been granted, because the case involved absolutely no novel question of law. In his view, the Court should never take a case without a doctrinal aim in mind, and should never reverse a judgment merely because it’s erroneous.

Justice Stevens is colossally and staggering wrong. The Court’s mandate is not to resolve interesting doctrinal puzzles, but impartially administer justice. Real people are affected by lawless lower court rulings, and the Supreme Court is often their only hope of vindication. Telling them that their cases aren’t doctrinally interesting enough to reverse is the height of banally unjust cruelty.

Doe v. United States

487 U. S. 201

June 22, 1988

The government suspected that ‘John Doe’s’ offshore bank accounts contained incriminating documents. Unfortunately for the government, the banks refused to turn over anything without Doe’s signed consent. The government prepared a broadly worded statement, which said that Doe granted consent for any offshore banks to turn over documents in their possession. Doe said that signing this would be testimonial self-incrimination banned by the Fifth Amendment.

The Supreme Court, with Blackmun writing, disagreed in a 8-1 ruling. The statement did not mention any specific banks, accounts, documents, or anything that could be considered testimonial. He was not vouching for the existence, relevance, or authenticity of anything – all of those judgments would be made by the banks and the government. In the end, it was no more compelled testimony than an order for a defendant to turn over a hair or blood sample.

Stevens, in dissent, disagreed. He thought it was more analogous to an order that a defendant “reveal the combination to his wall safe – by word or deed.” Stevens contended that any order requiring the defendant to use his mind to assist the prosecution could count as testimonial self-incrimination. As for me, this one’s a close call, and I’m not sure who I side with.

Braswell v. United States

487 U. S. 99

June 22, 1988

Randy Braswell was served with a subpoena to turn over records of a corporation which was basically his alter ego. Braswell argued that producing the requested documents would be a testimonial act, and that it might incriminate himself. He therefore sought to avoid producing the documents under the Fifth Amendment. At a minimum, he said, he had to be afforded immunity for the production. The government responded that under the collective entity rule, he could not assert such a privilege.

The Supreme Court ruled 5-4 that the Fifth Amendment could not be invoked. Rehnquist admitted that the Court had previously found that producing documents was testimonial, but that this rule only applied when the documents of a sole proprietorship were sought. When the documents of a corporation were sought, the custodial of the documents acted as an agent of the corporation – in other words, Braswell would not be asserting a privilege for himself, but for the corporation as a whole. And under a long line of cases, the collective entity rule had been established that corporations could not defeat subpoenas by invoking Fifth Amendment rights.

A case called Curcio where the Fifth Amendment protected a custodian from orally disclosing the location of documents was distinguished, because it involved verbal testimony. Rehnquist said that requiring a grant of immunity was a bad idea because it would make prosecuting certain crimes more difficult. Finally, he added a disclaimer that the government could never inform a judge or jury of the custodian’s personal identity.

Kennedy, joined by Brennan, Marshall, and Scalia, dissented. Everyone knew that the production of documents was a form of testimony, and Court precedents had held as much. Furthermore, Curcio could not be adequately distinguished because all testimony, verbal and non-verbal, gets Fifth Amendment protection. While corporate documents could not be shielded by the Amendment, none of the previous collective entity cases had held that the act of production itself was not self-incrimination. Kennedy said the majority stretched agency law too far, and that the government seemed to have targeted Braswell by the subpoena far more than his corporation. He also noted that the majority’s final disclaimer seemed to have no legal foundation. With respect to the majority’s public policy concerns, Kennedy replied that the Constitution’s text trumped them.

Kennedy eviscerated the majority opinion. It’s shameful that Rehnquist got five votes for his bit of pro-prosecution activism. It’s no fun to see made up rights, with no basis in the Constitution get recognized in some cases, and then see the actual text and substance of the Constitution ignored in others.

Arizona v. Roberson

486 U. S. 675

June 15, 1988

When arrested for burglary, the suspect invoked his Edwards v. Arizona right to not be questioned without a lawyer. Later, the police gave him another Miranda warning, and questioned him about a different burglary. Roberson moved that his incriminating statements about the different burglary be excluded from trial because his original request to not be questioned without a lawyer still stood. The Court had to decide whether the Edwards rule extended to questioning about unrelated crimes.

The Court ruled 6-2 that the rule did extend that far (O’Connor did not participate). Stevens distinguished some seemingly contrary precedents because they did not precisely involve the Edwards right to have no custodial questioning after a request for a lawyer. That the Miranda warning was re-administered did not matter, because the coercive pressures of several days in custody might weaken the suspect’s resolve. Stevens felt that a suspect who had requested a lawyer once should be properly resumed to desire one in other cases.

Kennedy, joined by Rehnquist dissented. Because Edwards was a prophylactic rule, rather than a Constitutional command, and because the dangers Edwards meant to address did not seem present, Kennedy did not think the rule properly covered the police conduct. There was no reason to presume that a Miranda warning would not assure a suspect that he could re-invoke his right to a lawyer. Neither should it be presumed that one suspect will necessarily want a lawyer for every single case.

Kennedy is probably right. It’s surprising to see Scalia going along with the majority. A few years later, he would dissent in another case about extending prophylactic rules, saying that the various extensions had created “a veritable fairyland castle of imagined constitutional restriction.”

St. Louis v. Praprotnik

485 U. S. 112

March 2, 1988

There was an architect in St. Louis on the government payroll named Praprotnik. He was the annoying type who files grievances about everything, so his immediate superiors shuffled him around and eventually get him laid off. To make a long story short, Praprotnik tried to hold St. Louis liable under Section 1983 because his superior officers were out to get him for exercising his First Amendment rights. St. Louis argued that it could not be liable because only misconduct by the highest policy making authorities could render the city itself subject to a 1983 suit.

The Supreme Court agreed with St. Louis in a 7-1 vote (Kennedy did not participate). O’Connor wrote the plurality opinion, which first turned back the aggravating argument that the questions before the Court weren’t properly preserved for appeal. In a refreshing display of good sense, O’Connor said that this was an area of the law which badly needed more judicial definition, and thus brushed aside the dumb preservation claims. Then, looking at the municipal laws, the plurality concluded that only actions by the Mayor, Alderman, and the Civil Service Commission could render the city itself liable to 1983 actions. Because none of these authorities were linked with the alleged persecution against Praprotnik, the city was immune.

Brennan, joined by Marshall and Blackmun, had a few minor quibbles in a concurrence in judgment. They thought the plurality placed too much emphasis on statutory law in figuring out the highest authorities in cities. They also thought that presence of scanty superior review did not mean that an officer was not a policy making authority. But Brennan still agreed that the officers which Praprotnik sued were, in any event, not ones that would open up St. Louis to liability. In all honesty, the two opinions were very close, and Brennan made a mountain out of some rather small disagreements.

In dissent, Stevens wanted to play trial judge, and he reviewed a bunch of court transcripts in order to conclude that the Mayor and his immediate subordinates had played an important role in screwing over Praprotnik. He also would have come out differently on the preservation for appeal question. Pressing forward anyway, he eschewed the search for the proper authorities that the two other opinions conducted. Instead, he saw a deep conspiracy by a wide network of officials throughout St. Louis, and thought it perfectly right to hold the entire municipality accountable. This opinion is an example of Stevens at his worst – so far off the reservation that not even the ultra-liberals Brennan and Marshall could fathom his bizarre thought process.

Pennell v. San Jose

485 U. S. 1

February 24, 1988

A rent control ordinance in San Jose laid out several objective tests which limited the rent increases that a landlord could charge. But in addition to these tests, rent increases were also to be limited if a hearings officer concluded that they caused “hardship” to tenants. Landlords objected that this violated the takings clause, the due process clause, and the equal protection clause. The thrust of the protest was that the ordinance asked landlords to outright subsidize poor tenants, rather than to merely charge a fair price.

The Court upheld the ordinance 6-2 (Kennedy did not participate). Chief Justice Rehnquist first turned back a standing challenge. There was no definite instance yet of a landlord being denied a rent increase on the hardship basis, but Rehnquist accepted that it was indeed a very likely possibility in the immediate future. The lack of a developed record was enough of a roadblock though that the Court declined to address the takings clause issue. Moving on to the due process and equal protection clauses, Rehnquist said that protection of the consumer’s welfare and interest was a rational end of legislation, and thus allowing certain tenants to be charged below the objective reasonable price was not Constitutionally troublesome.

Scalia, joined by O’Connor, agreed with the majority on everything except the takings clause. A close reading of recent takings clause decisions showed that an underdeveloped record was no impediment to considering the issue. Moving to the merits, Scalia said that forcing a landlord to charge less than the ‘fair’ price to needy tenants was indeed a regulatory taking. He compared it to forcing grocery stores to sell its food at lower prices to those suffering economic hardship. If San Jose wanted to alleviate hardship to the poor, Scalia said they could do so through welfare or public housing. I think this opinion is right, and the Court should have addressed the takings clause challenge on the merits (of course, I’ve never really been one for abstention based on standing issues).

Nollan v. California Coastal Comm’n

483 U. S. 825

June 26, 1987

The Nollan family sought to tear down a small house on California beachfront property, and build a much bigger one which would block view of the ocean. State regulators conditioned the right to build the new house on the Nollans granting the public easement to pass across the beach. The state claimed this was necessary because the bigger house served to separate the general public from seeing the ocean. The Nollans protested that the regulations violated the takings clause.

The Court ruled 5-4 that the condition was invalid. Scalia, writing for the Court, conceded that the government could in theory condition rebuilding on the granting of an easement. However, there would have to be an appropriate nexus between the condition and the government’s goal. But there was no such nexus, and Scalia explained this more succinctly than I ever could. “It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans’ property reduces any obstacles to viewing the beach created by the new house.” To buttress his conclusion that the beach viewing goal had nothing to do with the easement requirement, Scalia string cited over 20 state and federal decisions!

Brennan’s dissent, joined by Marshall, was a great grab bag of objections. The California Constitution, he said, granted citizens a right of access to waters that was superior to any private property rights. The Nollans knew about the easement restriction when they bought the property, and thus essentially assented to adhering to it. Lack of visual access to a beach is alleviated by greater physical access, and thus there was in a fact a close nexus between the goal and the regulation. Finally, Brennan said that requiring such a close fit did not comport with a good deal of takings clause precedent.

Blackmun’s brief dissent stated the he could see a clear correlation between the regulatory goal and the burden imposed. Stevens, joined by Blackmun, lamented that the decision was the inevitable result of the Lutherglen case. His opinion was a thinly veiled ‘I-told-you-so’ directed at Brennan and Marshall. It really is quite amazing how statist the dissenters were. Whether or not they admitted it, a total blank regulatory check was what they wished to give the government.

Greer v. Miller

483 U. S. 756

June 26, 1987

While on trial for murder with two other defendants, Charles Miller testified that he had not been a part of the murder, but was merely told about it afterward. The prosecutor asked why Miller had never made this claim prior to trial. This question was overruled by the judge, because under Doyle v. Ohio, post-Miranda silence cannot be used against a defendant at trial. After conviction, Miller argued that the prosecutor’s question was a non-harmless Doyle violation that required overturning the trial verdict.

The Supreme Court ruled 5-4 that no Doyle violation had occurred, and that regardless, the prosecutor’s question was harmless error. Powell said that Doyle violations only occurred when questioning silence was allowed, not when it was immediately overruled and never mentioned again. While asking the question was improper, it was only a few seconds in an extensive trial, and the Illinois Supreme Court had concluded that it did not constitute harmful error. Following their lead, Powell held that the prosecutor’s error was harmless.

Stevens said that commenting on postMiranda silence is still a Doyle violation, even if immediately overruled by a judge. He also thought this error was not harmless. But because the case was before the Court on collateral, rather than direct review, Stevens thought the Court should refrain from voiding the conviction. Brennan, joined by Marshall and Blackmun, railed at length about how harmful even a brief and overruled question about silence could be to a defendant’s case. He concluded that a Doyle violation had clearly occurred. Strangely, Brennan didn’t even address the harmless error issue (it was the last day of the term – my guess is that he simply ran out of time).

The majority got it right. We shouldn’t be making mountains out of molehills. Voiding a conviction over an overruled five second question is asinine. But what most struck me about the case was how terrible the Stevens concurrence is. Whether a conviction stands or not shouldn’t depend on the arcane direct v. collateral distinction! If a conviction shouldn’t have happened, it shouldn’t stand – period.

Bowen v. Gilliard

483 U. S. 587

June 25, 1987

To simplify things things slightly, a 1984 law had altered welfare, so that the amount of welfare money a family would receive was reduced according to how much money that family received in child support payments. Obviously, this meant that many poor families had their overall incomes reduced. Gilliard, a mother of seven, contended that the new law violated both Due Process, and the Fifth Amendment’s takings clause, as it created undue coercion on families to make hard choices, and deprived individual children of their untrammeled right to child support.

The Court, with Stevens writing, upheld the law 6-3. When deciding how to spend money, Congress had broad discretion, and the desire to save millions of tax dollars was a rational reason for altering welfare. That the law sometimes affected family living arrangements did not subject it to higher scrutiny, so there was no Due Process violation. Stevens held it was not a taking either. Although the accounting had some confusing labels, the child support still belonged to the child. Moreover, neither welfare nor child support was an inalienable right under the Constitution, and each one individually was generally accepted to be liable to alteration through law. While the law could sometimes be harsh, it was the job of Congress to change it, not the courts.

Brennan’s dissent, joined by Marshall, largely talked past the majority opinion. Picking up on his theme in Rivera regarding the importance of parent-child relationships, he lambasted the law because under its accounting process, the child support money was designated as “state” money. Because the state rather than the parent was now the ‘official’ dispenser of the cash, Brennan argued that the law essentially severed the parent-child bond. He then recounted sob stories of a father who stopped paying child support after the law’s passage, and a child who went to live with her father so her mother and siblings could better share welfare money. Brennan could not stomach a law which caused families to make these sorts of gut-wrenching decisions.

Toward the end of his opinion, Brennan offered a detailed description of a potential welfare law that he would deem Constitutional. In one of the most transparent lies all year, he added that his prescriptions did “not represent an effort to second-guess Congress as to the most effective use of its funds, nor does it represent a threat to the discretion that program officials must inevitably exercise.” Blackmun said in his dissent that he mostly agreed with Brennan’s arguments.

This, by far, was the most depressing case of the entire term. Your heart has to break for all of the children in impoverished single parent homes. It’s hard to take Brennan’s angry moralizing about the poor children seriously though, because it was liberals like him who put so many million innocent children in these terrible situations in the first place. It was liberals like him who worked feverishly to destigmatize divorce, fornication, single parenthood, and monogamy. They remained silent in the face of the mass resulting family destruction, and then belatedly spoke up only when the government didn’t provide as much aid as it probably should have in the brutal aftermath.