Criminal Law Summaries

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Fifth Amendment – Privilege Against Self Incrimination

Case: Ohio v. Reiner

Issue: Can a trial witness who denies all culpability for a criminal offense validly claim the Fifth Amendment privilege against self-incrimination?

Facts: Respondent Matthew Reiner was charged with involuntary manslaughter for the death of his two-month old son Alex. Evidence established that the infant died from “shaken baby syndrome” resulting from child abuse and that the injury occurred minutes before Alex stopped breathing. Reiner was with the child during that time frame. (Evidence established that Alex’s twin brother Derek suffered injuries as well.) Reiner maintained that Alex died earlier while in the care of babysitter Susan Batt. Reiner’s experts testified that Alex may have been injured during the period that he was under Batt’s care. At trial, the State called Batt to the stand. Batt invoked her Fifth Amendment privilege against self-incrimination and refused to testify, whereupon she was given transactional immunity and ordered to testify pursuant to Ohio Rev. Code Ann. § 2945.44. Batt testified that she had only demanded immunity on the advice of counsel and had in fact done nothing wrong. She denied any involvement in Alex’s death and denied shaking him. She denied causing any of the injuries suffered by Alex or Derek. Reiner was convicted and appealed his conviction. The Supreme Court of Ohio reversed Reiner’s conviction on the ground that Batt had no valid Fifth Amendment privilege against self-incrimination. The court held that Batt’s testimony could not have incriminated her because she “denied any involvement in the abuse.” The wrongful grant of immunity “prejudiced [Reiner] because it effectively told the jury that Batt did not cause Alex’s injuries.” The United States Supreme Court granted certiorari.

Holding: The Fifth Amendment privilege against self-incrimination “protects the innocent as well as the guilty, and the facts here are sufficient to sustain a claim of privilege.” The judgment of the Supreme Court of Ohio was reversed.

Reasoning: The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” In a per curiam opinion, the Court noted its longstanding precedent that the privilege extends not only “to answers that would in themselves support a conviction” but also to “those which would furnish a link in the chain of evidence needed to prosecute the claimant.” Citing Hoffman v. United States, 341 U.S. 479 (1951), the Court stressed that a potential witness need only show “from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Although the privilege only extends to those witnesses who have reasonable cause to fear danger from a direct answer and the inquiry on that issue is for the court, rather than the witness alone, “we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence.” To the contrary, the Court long ago ruled that one of the privilege’s main functions is to protect the innocent. Even truthful responses of an innocent person can ensnare the speaker. Grunewald v. United States, 353 U.S. 391 (1957).

Batt had reasonable cause to fear danger from her truthful answers since she spent extended periods of time with Alex and his brother in the weeks prior to the discovery of their injuries and she was with Alex within one potential time frame of his death. The defense theory was that she caused the injuries and death. “In this setting it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her.”

Other Opinions: None

Comment: This short, seemingly minor reaffirmation of prior precedent is in fact potentially significant to criminal defense practitioners. As a practical matter, it is already fairly difficult for the Government to disprove a witness’ claim to Fifth Amendment protection. This decision will make it even more difficult and may very well be frequently invoked at the Grand Jury stage of criminal investigations.

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