Monday, March 22, 2004

SCOTUS heard oral arguments today on Hiibel v. Sixth Judicial District Court of the state of Nevada. I posted previously about Mr. Hiibel's case but the short version is that a cop asked him for his I.D. & he refused to give it. He & his daughter were subsequently arrested. Her charges were dismissed when it was brought up that her resisting arrest was legally impossible since she committed no offence to be arrested on in the first place. Mr. Hiibel however was found guilty of "delaying a piece officer". Through the wonders of modern technology you don't have to take my or anyone else's word for what happened; Mr. Hiibel has a site that has video, audio & a transcript of the arrest as well as copies of the legal documents involved.

Now let's look at some of the things reported from the oral arguments:

"Nevada senior deputy attorney general Conrad Hafen told justices that 'identifying yourself is a neutral act' that helps police in their investigations and doesn't - by itself - incriminate anyone."

The smart ass in me would be quick to point out that prostrating yourself while chanting, "Hail ye blue defender of the state for you are armed" is a neutral act, yet I'd love to see a judge foolish enough to uphold a law requiring it in this country.

But the more reasoned approach is to point out that identifying yourself is not a neutral act. Hell, the statement he made contradicts itself. How can an act be neutral if it helps an investigation? & suppose the cops have an outstanding warrant for you: identifying yourself would lead to incrimination now wouldn't it? Going a little further let's say you're a gun owner who has a CCW permit in a state where the CCW records are available to the cops. By identifying yourself you're letting the cop know you have more than a reasonable chance of being armed. Now if you're in a school zone or other safehaven for criminals where being armed is a no-no, then you've just provided Officer Friendly with probable cause for a search. So by identifying yourself you are giving the state a leg up if it decides it wants to prosecute you.

Also let's be clear: the 5th amendment to the U.S. Constitution says in it's relevant part "No person...shall be compelled in any criminal case to be a witness against himself..."

This is erroneously referred to as the clause against self incrimination. While the purpose of the clause may be to prevent compelled testimony which may be used against a person in a court of law it's a misnomer to use "incrimination" in the description. Here's why:

If we assume the protection to be solely concerned with preventing compelled testimony that will incriminate a person, then we have to have a presumption of wrongdoing on the person's part. In effect no one would use this unless they were guilty & it would be taken as an admission of guilt. But the wording is clear in that it simply refers to testimony without making any distinction between incriminating testimony & general testimony.

The whole idea is that you may testify about yourself & by doing so give the state justification for prosecuting you even if you were not aware you could be prosecuted. A perfect example is if you're asked to testify about your whereabouts on a particular day at a particular time. If you respond that you were in a certain area alone around a certain time then you could be made a suspect in the investigation of a crime committed by a person that meets your general physical description. Now you would not have to be aware that the crime happened at all but by providing testimony you could have given the state enough cause to prosecute you for that crime despite your being innocent.

If "self incrimination" were taken to heart then you could be compelled to testify because you would not (in the example above) be aware that your testimony could incriminate you & you wouldn't think you could assert the 5th amendment as a reason to not testify.

& any use of the clause against "self incrimination" would render any pleadings of "not guilty" irrelevant: if only those guilty of the stated charge could refuse to answer, then what juror wouldn't see this as anything less than an admission of guilt to that act?

So it's more appropriate to understand that a clause preventing compelled self incrimination would be a self defeating clause since only those that are actually guilty may use its protection & by consequence it would offer no protection at all for anyone. has a much more in depth examination of the clause against self testimony & you should give it a read if you want to know more about its history & the way the courts currently treat it.

Responses in a different vein were supplied to the deputy attorney generals statements:

"But if that is allowed, several justices asked, what will be next? A fingerprint? Telephone number? E-mail address? What about a national identification card?
'The government could require name tags, color codes,' Hiibel's lawyer, Robert Dolan, told the court. "

Now Dolan's response was good simply because of its subtlety: he didn't come right out & say that this was the tip of a slippery slope that would led America to resemble Nazi Germany, but I have little doubt that visions of a yellow star with the word "Jude" written on them didn't pop in the minds of all who were present.

Unfortunately the deputy attorney general from Nevada wasn't the only one making arguments for compelled self identification:

"Justice Antonin Scalia, however, expressed doubts. He said officers faced with suspicious people need authority to get the facts.
'I cannot imagine any responsible citizen would have objected to giving the name,' Scalia said."

Justice Scalia probably can't imagine a lot of things. I'm sure he can't imagine that despite his being a constructionist & openly opposed to the arguments in favor of a "living constitution" that a lot of freedom loving people would question his judgment because of statements like the one above. Justice Scalia is probably the best friend that gun owners have in SCOTUS right now, but that is more because of the assumed anti-gun/pro-government make-up of the court rather than his purity when it comes to the Right to Arms. It would have been interesting to hear if he wanted to grant cert to Silveira or not & the reasons why, but odds are that won't happen anytime soon.

"Justice Sandra Day O'Connor pointed out the court never has given police the authority to demand someone's identification, without probable cause they have done something wrong. But she also acknowledged police might want to run someone's name through computers to check for a criminal history."

Though her statements seem cool on the surface (at least the first one) if you look closer you'll see that she sees no problem with compelling identification if there is probable cause of a crime or for a general records search. In can be inferred that she does not view self identification as being protected by the 5th amendment, since the 5th would apply even in the face of probable cause. Her last statement assures us that she feels compelled identification can be justified. But if the court were to apply a probable cause standard for compelled self identification then I assume identification would still fall under the 4th amendment's protection.

Needless to say I disagree with Justice O'Conner's statements. Identifying yourself is a form of testimony & falls under the 5th amendment's protection against self testimony. To attempt to nullify the 5th amendment arguments yet support the 4th amendment arguments is simply inconsistent with the nature of providing I.D. One could argue that a warrant could be issued in accordance with the 4th amendment that requires a person to I.D. themselves but compelled self testimony concerning identity would do an end run around that. Then again the courts have ruled that giving fingerprints aren't a form of self testimony so this isn't a big surprise. (Needless to say I disagree with that as well). The only way an argument based on the 4th but negating the 5th could work is if an I.D. is not a form of testimony & to arrive at that conclusion we'd have to simply ignore the arguments where a data base error leads to prosecution, or a list of warrants leads to an arrest, or where a license of some sort in that person's name (such as an occupational license or a firearms license) gives probable cause.

Oh, lest I forget, guess who was on Nevada's side in this case:

"Nevada is supported by the Bush administration and two criminal justice groups..."

Bush opposed Haney, Bean & Emerson but supports a case that penalizes those who don't have their papers in order. Wait, that's a common thread, not a distinction isn't it?

I don't really want to make any predictions in this case. I'll leave that to the various lawyer-bloggers who care to comment on this. But I will say that I don't have much more faith in the courts to respect our Rights than I do in the legislature. So let's just leave it at my being more than a bit concerned about the outcome.

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