(another in my series of posts today on the Court’s Hiibel decision):
The most interesting debate in Hiibel has to do with the privilege against self-incrimination. Though the text of the Fifth Amendment only bars “compell[ing] [any person] in any criminal case to be a witness against himself,” the Court has applied this to pretrial questioning as well as to questioning of witnesses at trial — not unreasonable, since otherwise the provision could be easily circumvented by forcing people to make statements before trial, and then introducing those statements into evidence against them. And the Court has generally held that the Amendment covers not just forced confessions (“I did it, and I’m glad”), but also forced statements that may indirectly suggest the person’s guilt, or even that may lead to the discovery of evidence against him. Moreover, as Justice Stevens points out in his dissent, requiring a person to give his name will often lead to the discovery of evidence against him, especially when the police are asking precisely because they reasonably suspect criminal activity.
Justice Kennedy’s majority reasons otherwise: “Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.” In this very case, the opinion points out that Hiibel himself had no “articulated real and appreciable fear that his name would be used to incriminate him, or that it `would furnish a link in the chain of evidence needed to prosecute’ him.”
Yet it seems to me that if the police ask suspects their names, that’s probably because they think that the name will often help uncover evidence of crime. Maybe, as the majority itself suggests, the name “may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.” Or maybe it will make it easier for the police to more effectively question others about the suspect’s behavior, even after they let the suspect go. And when the police have stopped a person because they have reasonable suspicion to think he has committed a crime, and the person wouldn’t give his name voluntarily, it seems fairly likely — not certain (because maybe the person is just very concerned about his privacy, as Hiibel might have been), but fairly likely — that the name is indeed evidence that can be used against the suspect.
What’s more, how would the majority’s decision play out in practice? The majority acknowledges that “a case may arise where there is a substantial allegation that 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,” and in such a case, the Fifth Amendment privilege would apply.
But how would such a case be litigated? Say that the police stop me, ask my name, and I take the Fifth. Do they have the right to arrest me, on the theory that I’ve violated the compelled identification statute? (Of course, the statute must be read as not punishing the exercise of my constitutional rights.) Or do they lack probable cause to believe this, since for all they know my identity may indeed implicate me in a crime?
Of course, in this situation taking the Fifth would itself be incriminating in one sense: Since only those who think they might be incriminated have the constitutional right to take the Fifth, the police would be practically correct to be extra suspicious of people who assert their Fifth Amendment rights. And yet I assume that the police ought not be allowed to arrest someone simply because the person has asserted his constitutional rights, even if a practical person would find it highly suspicious. (When a person asserts his Fourth Amendment rights and refuses to consent to a police search, most lower courts don’t let the police build probable cause based partly on the consent — the police would have to have probable cause independently of the refusal. Likewise, a person’s taking the Fifth may not be argued to the jury as evidence of his guilt.)
To be sure, some Supreme Court cases have upheld requirements that people say various things that include their names — file tax returns, for instance, identify themselves to other drivers when they’re involved in an accident, or identify themselves when they’re being booked for a crime at the police station. But those decisions have repeatedly rested on the theory that the identification is needed for non-law-enforcement purposes: collecting taxes, facilitating civil litigation, or keeping track of whom the government is keeping in jail. The purpose of Terry stops, on the other hand, is all about law enforcement.
Now maybe the majority’s result is still right. Maybe, as some have suggested, the Fifth Amendment should simply bar the use of compelled statements themselves as evidence, but should let the government use as evidence the material that the government gathers indirectly based on compelled statements (the so-called “fruits” of the statement). This might be more consistent with the text of the Amendment. Or maybe there should be a separate rule for compelled self-identification, which one might say is less likely to offend the principles behind the privilege against self-incrimination, whatever those principles may be (there’s a hot debate about that).
But it seems to me that on its own terms, the majority’s argument isn’t terribly persuasive; Justice Stevens seems to have the better of it.
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