Does the majority of the California Supreme Court have found a Fifth Amendment violation even when the state has not technically "compelled" a defendant to produce their testimonial disclosures?

California, United States of America


The following excerpt is from Izazaga v. Superior Court, 285 Cal.Rptr. 231, 54 Cal.3d 356, 815 P.2d 304 (Cal. 1991):

Further, contrary to the majority's assertion (see maj. opn., ante, at p. 237 of 285 Cal.Rptr., at p. 310 of 815 P.2d), the high court has found Fifth Amendment violations even when the state has not technically "compelled" a defendant to produce testimonial disclosures. In Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the high court observed that comment on a defendant's failure to testify "is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." (Id. at p. 614, 85 S.Ct. at pp. 1232-1233.) The court found that "cutting down" the privilege, regardless of compulsion, constituted a Fifth Amendment violation. Similarly, in Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 the high court explicitly rejected the argument that a criminal defendant's testimony at a suppression hearing was not "compelled" and therefore could be used against the defendant in the prosecution's case-in-chief. "Those courts which have allowed the admission of testimony given to establish standing [to object to the admission of incriminating evidence] have reasoned that there is no violation of the Fifth Amendment's Self-Incrimination Clause because the testimony was voluntary. As an abstract matter, this may well be true. " (Id. at p. 393, 88 S.Ct. at p. 976, italics added, fn. omitted.) The absence of "compulsion" notwithstanding, the high court held that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." (Id. at p. 394, 88 S.Ct. at p. 976.)

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