In Re Billman ( 1993 )

I dissent from the majority opinion. I am an ardent believer in constitutional protection for all citizens, but I am not willing to create a blanket protection with far more damaging implications than necessary.

The power of government to compel individuals to testify in court, before grand juries and other governmental agencies, is firmly entrenched in Anglo-American jurisprudence. See Ullman v. United States (1956), 350 U.S. 422,439, 76 S.Ct. 497, 507, 100 L.Ed. 511, 525, fn. 15. The power with respect to courts was established by statute in England as early as 1562, see Statute of Elizabeth (1562), 5 Eliz. 1, ch. 9, Section 12, and Lord Bacon observed as early as 1612 that all subjects owed the King their "knowledge and discovery,"Countess of Shrewsbury's Case (1612), 2 How.St.Tr. 769, 778. The power to compel a witness's testimony and the corresponding duty to testify are recognized in the Sixth Amendment to the United States Constitution. But the power to compel testimony is not absolute. The most important check to this power of compulsion to testify is the Fifth Amendment to the United States Constitution, a.k.a., privilege against compulsory self-incrimination, which reads in pertinent part as follows:

"No person shall * * * be compelled in any criminal case to be a witness against himself * * *."

The privilege is a testament to our fundamental values and aspirations; it also shows a very crucial factor in the development of our individual liberty. Ullman, supra,350 U.S. at 426, 76 S.Ct. at 500, 100 L.Ed. at 518.

I agree with the majority that it can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. McCarthy v. Arndstein (1924),266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158, 160-161; UnitedStates v. Saline Bank (1828), 1 Pet. 100, 7 L.Ed. 69; cf.Gardner v. Broderick (1968), 392 U.S. 273, 88 S.Ct. 1913,20 L.Ed.2d 1082. But it is not accorded the same weight in civil as it is in criminal proceedings. It is not available in a civil action unless the testimony might later subject the witness to a criminal prosecution. Where I part with the majority, therefore, is on the application of the privilege. The privilege protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. Hoffman v. United States (1951),341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124; see, also, Blau v. United States (1950), 340 U.S. 159, 71 S.Ct. 223,95 L.Ed. 170; Mason v. United States (1917), 244 U.S. 362, 365,37 S.Ct. 621, 622, 61 L.Ed. 1198, 1199-1200. It is my opinion that a witness can be compelled to testify so long as the government does not later use his words against him in a criminal prosecution or in any way that undermines his protected rights as a result of his testimony. It is these values which underlie the privilege that courts should zealously safeguard. See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694; and Boyd v. United States (1886), 116 U.S. 616,635, 6 S.Ct. 524, 534, 29 L.Ed. 746, 752-753.

The majority's sole reason for reversing the trial court is that "[t]estimony elicited from a parent on any of these issues would open the door for potential prosecution, at a minimum, for child endangering pursuant to R.C. 2919.22." In other words, the testimony may be used against a testifying parent. This is not an argument for a court to make. It should be a statement made by a witness while refusing to answer a particular question either on advice of counsel or on her own. The Fifth Amendment privilege against compulsory self-incrimination is not a privilege to remain silent, but a privilege against subsequent prosecution of the witness based on his own words. The essential ingredient lacking in this case is the failure of appellant to demonstrate that her testimony was in any way incriminating or used against her. A constitutional protection does not and should not operate in a vacuum, or be subjected to conjecture and suppositions. Section 6002, Title 18, U.S. Code provides that when a witness is compelled to testify over a claim of the privilege:

"* * * [T]he witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order."

In the instant case, the record reveals that appellant originated the circumstances that led to this proceeding when she requested outside care from the state for her children. At the hearing, the trial court understood the steps necessary to protect her when it made the following observations:

"THE COURT: Ordinarily, Mr. Amata, in this courtroom, witnesses who are called * * * must testify, and * * * unless they're going to incriminate themselves — in which case, you could advise her not to answer the question, because it might be incriminating." See In re Troescher (Aug. 5, 1991), Stark App. No. 8442, unreported, 1991 WL 160861. Even appellant's counsel could not find any incriminating statement made by her nor did he advise her not to answer any of the questions proffered to her:

"They have to rely on my client to get up there and incriminate herself — which I don't think she did, but that's the gist of their case."

In case after case, courts have ruled that the protection is against the use of compelled testimony and not the making of the testimony. A witness does not suffer from the making of a statement until that statement is used against him at which time the Fifth Amendment protection against self-incrimination kicks in. As the United States Supreme Court held in Murphy v.Waterfront Comm. of New York Harbor (1964), 378 U.S. 52, 79,84 S.Ct. 1594, 1609, 12 L.Ed.2d 678, 695:

"``[A] state witness may not be compelled to give testimony which may be incriminating under federal law unless thecompelled testimony and its fruits cannot be used in any manner by federal officials in connectionwith a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Governmentmust be prohibited from making any such use of compelledtestimony and its fruits.'" (Emphasis added.) See, also,Albertson v. Subversive Activities Control Bd. (1965),382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165.

While it is preferable not to compel a witness to testify, however, when it is done in the interest of justice, an appellate court's review should be concerned with the use of such testimony. To the extent that appellant's testimony is not used against her, there is no violation of the Fifth Amendment in the instant case, and I would not disturb the trial court's judgment. Accordingly, I dissent.