THE FIFTH AMENDMENT RIGHTS OF THE INNOCENT: A Recent Supreme Court Case Challenges The Popular Notion That Criminal Procedure Protects Only The Guilty

By SHERRY F. COLB

Wednesday, Mar. 28, 2001

On March 19, the United States Supreme Court handed down a per curiam opinion in Ohio v. Reiner, holding that the Fifth Amendment right against self-incrimination protects the innocent as well as the guilty. It is troubling that the Fifth Amendment rights of innocent people were, up until last week, in serious question.

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The Trial in Reiner

Matthew Reiner was charged with manslaughter in connection with the death of his two-month old son, Alex. During the trial, the defense claimed that Reiner was innocent, and blamed the child's babysitter, Susan Batt, for Alex's death.

In the course of putting on its case, the prosecution called Batt to the witness stand. Previously, she had said she was innocent of harming the child. But she had also given notice that, at Reiner's trial, she would refuse to answer questions about Alex's death, on Fifth Amendment grounds.

The State presumably feared that without Batt's testimony, it would be difficult to rebut Reiner's claim that the death was actually Batt's fault, not his. Accordingly, the State requested that the trial judge grant Batt transactional immunity — meaning that Batt could not be prosecuted for any transactions about which she was required to testify at Reiner's trial. (Such immunity would not, however, shield her from perjury charges arising from any lies that she told during her testimony.)

The trial judge granted the request. Then, armed with transactional immunity, Batt denied any involvement in either Alex's death or the injuries that he and his twin brother, Derek, had previously sustained. The jury subsequently found Matthew Reiner guilty of manslaughter.

Proceedings on Appeal

Reiner appealed his conviction in the court system of the state in which he had been convicted, Ohio — contending that the trial judge should never have given Susan Batt immunity. The Ohio Supreme Court agreed, and reversed Reiner's manslaughter conviction.

The state's high court held that Batt — by maintaining that she was innocent — had forfeited any Fifth Amendment protection and therefore should not have enjoyed the grant of immunity premised on her assertion of Fifth Amendment rights.

The Ohio court reasoned that by definition, compelling an innocent witness to tell the truth does not compel self-incriminating testimony. An innocent person cannot incriminate herself, because she has done no wrong, and she therefore lacks any entitlement to Fifth Amendment protection.

The Supreme Court's Decision

The Supreme Court, upon review, unanimously reversed the state court's decision. The Court explained that whether a witness has a valid Fifth Amendment claim does not turn on the witness's guilt. Self-incrimination means providing evidence tending to suggest the guilt of the witness. Had an innocent Susan Batt been forced, without immunity, to testify that she had spent time alone with a homicide victim (as the child's babysitter), she would have provided a future prosecutor with proof that she had had the opportunity to kill the victim.

Such proof would then represent a "link in the chain of evidence" needed to prosecute her. And since prosecutions can and do happen to innocent people sometimes, Batt would have effectively "incriminated" herself — in that she gave testimony facilitating her future prosecution and even, perhaps, her erroneous conviction.

Why the Innocent Need Fifth Amendment Rights

As a matter of logic, innocent people can place themselves at risk of self-incrimination for crimes that they did not commit.

Often, for example, more than one person may have had a motive to kill the victim in a homicide case, even when only one person has actually killed him. Forcing one of the innocent people to testify about her motive in such a case would, of course, represent compelled self-incrimination.

Why, then, is the notion that criminal procedural protections are not available to the innocent still so widespread? Perhaps it is in part because the most frequent avenue for litigating Fourth and Fifth Amendment rights is the motion to suppress evidence in a criminal trial — which is brought to keep damaging and often-reliable incriminating evidence away from the jury.

When the police search a suspect's home without a warrant, the guns and fingerprints they find are no less damning than they would be if proper procedures had been followed. Yet the evidence is suppressed.

Similarly, when police force a suspect to say where a body is buried, the fact that the body is, indeed, present at the confessed location is no less revealing than it would be absent the coercion. Yet the coerced statement, as well as all evidence derived from it, are suppressed.

No wonder people perceive these provisions as protecting only the guilty, and specifically, as protecting them from their just punishment. The appearance is deceptive, however. Suppression motions ideally function as a deterrent to police misconduct, and the innocent benefit as much as the guilty from the resulting drop in misconduct.

Still, this argument may make the innocent seem like incidental beneficiaries of rights that are primarily targeted to, and exercised by, the guilty. But that is really not the case. As I have argued elsewhere, the primary purpose of the Fourth Amendment right against unreasonable searches and seizures is to protect the privacy of innocent people. Accordingly, it is the guilty whose benefit from these provisions is incidental — an unfortunate cost of protecting the innocent.

For example, the threshold finding of probable cause that enables a magistrate to issue a warrant under the Fourth Amendment, is a finding that corresponds to the likelihood that a suspect is guilty. Probable cause, in other words, correlates with guilt, and that correlation is deliberate.

The Fifth Amendment right against compelled self-incrimination might seem more guilt-oriented on its face. It embraces the notion that in a civilized society, people should not be made the instruments of their own criminal convictions, however well-deserved.

What could be more uncivilized, however, than an innocent person being forced to participate in a process that makes her look as though she has committed a crime when she has not? As the Supreme Court said in Reiner, "one of the Fifth Amendment's 'basic functions . . . is to protect innocent men . . . "who otherwise might be ensnared . . . ."

The public reasonably resents the notion that our Constitution deliberately protects the privacy and freedom of those who prey on their fellow citizens. That notion is, fortunately, incorrect. But as long as those who champion criminal procedural protections insist that these protections are primarily for the benefit of those engaged in criminal behavior, they endanger the viability of these rights — for they provide the public with little reason to accept or honor them.

For such rights to survive, it is essential that innocent people be aware of them, exercise them, and appreciate their value as elements of a free society. The Supreme Court's announcement that innocent people are entitled to Fifth Amendment protection is a positive step in that direction.


herry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. She has published several articles in the Fourth Amendment area, including one elaborating the relationship between innocence and privacy, entitled "Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence," 96 Columbia Law Review 1456 (1996).

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