State v. Rivers

MANNHEIMER, Judge,

concurring.

I write separately to clarify and emphasize the core of our decision.

The superior court ruled that Rivers's statements to the Division of Employment Security investigator were "involuntary" for constitutional purposes because Rivers was compelled by law to attend the interview and answer questions concerning his eligibility for unemployment benefits-"compelled" in the sense that, if he declined to attend the interview or to answer the investigator's questions, he risked the loss of his benefits.

The superior court's analysis is incorrect. The fact that a person is compelled by law to attend a hearing and auswer questions does not mean that the person's resulting statements are involuntary-otherwise, all testimony given in court by witnesses under subpoena would be involuntary. This point of law is explained by Professor Wigmore:

[When al witness is on the stand and an incriminating fact, relevant to the issue, is desired to be proved through him, the question may be asked, and it is for [the witness] then to [raise] a claim of privilege[.] ... [Thhe witness cannot at the very ... threshold set up the privilege of not answering possible questions as a valid reason for refusing to obey the process of [the] court summoning him to appear.

John Henry Wigmore, Evidence in Trials at Common Law (McNaughton rev'n 1961), § 2268, Vol. 8, pp. 402 & 405 (emphasis in the original).

Thus, when determining whether a person's statements are voluntary or involuntary, the issue is not whether the person was under compulsion to attend the proceeding and answer questions. Rather, the issue is whether the person was coerced to surrender their privilege against self-incrimination. 1

If a person is summoned to a court proceeding or agency hearing, and if the person is questioned in such a way that the person's answers might tend to incriminate them, then it is the person's right to assert the privilege against self-inerimination and refuse to answer. But if the person fails to assert this privilege and instead answers the questions, the privilege is waived and the answers are considered "voluntary" for constitutional purposes-even though the person is never explicitly warned that they have the legal right to refuse to give potentially incriminating answers. 2

Rivers answered the questions put to him, and he never interposed the privilege against self-incrimination. Accordingly, his statements are presumed to be voluntary. 3

As the majority opinion notes, there are two exceptions to the rule that a person's failure to assert the privilege against self-incrimination will be deemed a waiver of the privilege.

The first exception is the Miranda rule, which applies to people who are subjected to custodial interrogation. Because of the implicitly coercive aspects of police custody, suspects in custody must be explicitly informed of their right not to incriminate themselves, and they must waive this right before the interrogation proceeds. But Rivers was not in custody for Miranda purposes.

The second exception applies to situations where a person's very assertion of the privilege against self-incrimination triggers a penalty. In such instances, the person's statements will be deemed involuntary because the person has been unlawfully deterred from asserting the privilege. 4

*1005 But for purposes of this exception, one must distinguish situations where a person will be penalized for the very act of asserting the privilege (eg., the person will lose their job if they assert the privilege, regardless of the other evidence in the case) from situations where a person is free to assert the privilege but they then run the risk that, based on the remaining evidence, the court or administrative agency will decide the case against them. The exception applies only to the former situation, not the latter. 5

The United States Supreme Court discussed this point of law in Minnesota v. Murphy. 6 Murphy was a probationer who was summoned to meet with his probation officer and answer questions about his activities; the probation officer anticipated that Murphy's answers (if truthful) would be self-incriminating. Murphy answered the probation officer's questions, and those answers were later used against him in a criminal prosecution. On appeal, Murphy argued that his answers were "compelled" within the meaning of the Fifth Amendment.

In rejecting this claim, the Supreme Court carefully distinguished (a) Murphy's legal obligation to meet with his probation officer and answer the officer's questions truthfully from (b) Murphy's ability to invoke the Fifth Amendment if he believed that truthful answers would tend to incriminate him. The Court declared that even though Murphy "was under legal compulsion to attend the meeting [with his probation officer] and to answer truthfully the questions of [the] probation officer",

[such compulsion ... is indistinguishable from that felt by any witness who is required to appear and give testimony[.] ... [I)t is insufficient to excuse Murphy's failure to exercise the [Fifth Amendment] privilege in a timely manner.

. Murphy's probation condition pro-seribed only false statements; it said nothing about his freedom to decline to answer particular questions[,] and [it] certainly contained no suggestion that his [continued] probation was conditional on his waiving his Fifth Amendment privilege{[.] ...

. There is no direct evidence that Murphy confessed because he feared that his probation would be revoked if he remained silent. Unlike the police officers in Garrity v. New Jersey, 385 U.S. 498 , 87 S.Ct. 616 , 17 L.Ed.2d 562 (1967), Murphy was not expressly informed ... that an assertion of the privilege would result in the imposition of a penalty....

[And if] Murphy did harbor a belief that his probation might be revoked for exercising the Fifth Amendment privilege, that belief would not have been reasonable. Our decisions have made clear that [al State could not constitutionally carry out a threat to revoke [a person's] probation for the legitimate exercise of the Fifth Amendment privilege.... Indeed, in its brief in this Court, the State [of Minnesota] submits that it would not, and legally could not, revoke probation for refusing to answer questions calling for information that would incriminate in separate criminal proceedings.

... We have not been advised of any case in which Minnesota has attempted to revoke probation merely because a probationer refused to make nonimmunized disclosures concerning his own eriminal conduct; and, in light of our decisions proscribing threats of penalties for the exercise of Fifth Amendment rights, Murphy could not reasonably have feared that the assertion of the privilege would have led to revocation.

Murphy, 465 U.S. at 487-39, 104 S.Ct. at 1147-48.

This Court applied this same principle in John v. State, 35 P.3d 58 (Alaska App.2001), where we rejected a defendant's contention *1006 that his statements to a pre-sentence investigator were involuntary because he "was presented with the choice of either fully answering the questions in the presentence worksheet or risking an unjust sentence". Id. at 62-68.

Rivers found himself in an analogous situation. It may be true that, based on the information available to the Division of Employment Security, the Division might well have decided to terminate Rivers's unemployment benefits (and to initiate legal action against him for his earlier collection of unauthorized benefits) if Rivers had invoked his privilege against self-incrimination and had thereby declined to offer any explanation of his situation. But there is nothing in the record to suggest that the Division would have terminated Rivers's benefits (or imposed any other penalty on him) based simply on the fact that he invoked the privilege. Thus, the Division did not infringe Rivers's constitutional privilege against self-inerimination.

(Alternatively, if Rivers had asserted his privilege, AS 28.20.070 empowered the Division to insist on Rivers's answering their questions despite his claim of privilege-in which case, under the statute, Rivers would have received immunity from prosecution for his answers. Again, Rivers's constitutional rights would not have been abridged-because immunity is a lawful substitute for the privilege against self-inerimination. 7 )

In sum, even though Rivers may have been obliged to attend the Division of Employment Security interview, and to answer the questions put to him by the state investigator, this is not a basis for concluding that Rivers's answers were "compelled" or "involuntary". Rivers's answers would be compelled or involuntary only if he was threatened with a penalty for asserting his privilege against self-incrimination and refusing to divulge potentially incriminating information. This did not happen.

The superior court therefore committed error when it suppressed Rivers's statements to the investigator.

. Minnesota v. Murphy, 465 U.S. 420, 434-35 , 104 S.Ct. 1136, 1146 , 79 LEd.2d 409 (1984); Beaver v. State, 933 P.2d 1178, 1181 (Alaska App.1997).

. Murphy, 465 U.S. at 427-28 , 104 S.Ct. at 1142 ; Beaver, 933 P.2d at 1181 ; Williams v. State, 928 P.2d 600, 606-07 (Alaska App.1996).

. See Beaver, 933 P.2d at 1181 .

. Murphy, 465 U.S. at 434-35 , 104 S.Ct. at 1146 ; Beaver, 933 P.2d at 1181 .

. See Garrity v. New Jersey, 385 U.S. 493, 500 , 87 S.Ct. 616, 620 , 17 L.Ed.2d 562 (1967) (holding that it is unlawful to use incriminating answers given by a police officer after the officer was deterred from asserting the Fifth Amendment privilege by warnings that, if he asserted the privilege, he would be fired). See also Gardner v. Broderick, 392 U.S. 273, 279 , 88 S.Ct. 1913, 1916 , 20 L.Ed.2d 1082 (1968) (holding that it is unlawful to fire a police officer simply for invoking the Fifth Amendment privilege).

. 465 U.S. 420 , 104 S.Ct. 1136 , 79 LEd.2d 409 (1984).

. See Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 79 , 84 S.Ct. 1594, 1609 , 12 L.Ed.2d 678 (1964) ("[A] witness may not be compelled to give testimony which may be incriminating ... unless the compelled testimony and its fruits cannot be used in any manner by . officials in connection with a criminal prosecution against him."); Hazelwood v. State, 836 P.2d 943, 952 (Alaska App.1992) ("Because the ultimate aim of the ... privilege is to assure that no compelled statement will be used against the accused in a criminal case, the Supreme Court has long recognized that the ... protection against compulsory elicitation of potentially incriminating statements ... may be properly invaded by the government, but only in exchange for a guarantee that the ... compelled statements or evidence derived therefrom ... will not be [used against the person].").