Sunday, July 11, 2021
Colorado Court of Appeals Finds Fifth Amendment Guarantees the Contemporaneous Advice of Counsel on a Question-by-Question Basis
The Fifth Amendment privilege against self-incrimination provides that
No person...shall be compelled in any criminal case to be a witness against himself.
So, does the Fifth Amendment also guarantee a testifying witness the contemporaneous advice of counsel — on a question-by-question basis — in determining whether to invoke the privilege against self-incrimination? That was the question of first impression addressed by the Colorado Court of Appeals, Division III in its recent opinion in People in the Interest of K.S-E., 2021 WL 2842044 (Colo.App. 2021).
In K.S-E., "Mother retained Rosenfeld to represent her in Arapahoe County District Court Case No. 18JV969, a dependency and neglect proceeding involving her child, K.S-E." Subsequently, during a pre-trial conference,
[t]he People called mother as a witness. Before beginning direct examination, the People informed the court that mother “has a pending criminal action that's attendant to these proceedings and the factual allegations overlap” and asked that she be advised about her Fifth Amendment rights. The court agreed and gave a “full advisement” to mother.
Following the advisement, the People and the child's GAL asserted that Rosenfeld should not be allowed to “stand up and invoke [the Fifth Amendment] on [mother's] behalf.” Rosenfeld responded that “I will stand up and advise her to invoke,” to which the court responded, “No” and “I don't think you get to do that.”
Thereafter, Rosenfeld would knock when he wanted Mother to plead the Fifth, even after the court ordered him not to do so. The court thus held Rosenfeld in contempt, ruling that:
She's on the witness stand. You don't get to tell her what to say or not to say. That's the whole point of why I issued the order. And if you had confusions as to the order, you should have addressed it instead of trying to be sneaky behind this Court's back, which is exactly what you just admitted to. You and your actions, this Court is finding is so extreme that this is absolutely something this Court would never expect from any lawful attorney practicing law in this court or any other court. And that this Court warned you. And I don't even need to warn you now, you've admitted to it, that your conduct is so offensive to the authority and dignity of this Court that I have no choice but to find you in direct contempt. To think that just because I said no standing up — if that's what I really said — you don't get to advise her, you know the intent. You were trying to be sneaky behind this Court's back, but I caught on. And that's not okay.
The Colorado Court of Appeals later reversed, concluding that
It is well established that the privilege against self-incrimination “is an option of a refusal, not a prohibition of inquiry,” and thus it “may not be asserted as a blanket claim in advance of the questions actually propounded.”...Rather, as the Colorado Supreme Court has recognized, “[t]he proper procedure” when invoking the privilege “is to wait until a question which tends to be incriminating has been asked and then decline to answer.”...This is in part because the availability of the privilege turns on the nature of a particular question and the exposure that it invites....
Thus, the determination of whether to invoke the privilege must be made on a question-by-question basis. Yet, as the Maness Court explained, a witness cannot be expected to soundly make such a determination absent the advice of counsel — accordingly, the right to such advice is subsumed within the Fifth Amendment....In fact, where a witness has difficulty understanding the proceedings, some courts have gone so far as to suggest that a witness's attorney may interpose the privilege on the witness's behalf on each potentially incriminating question....
In sum, then, a witness has a Fifth Amendment right to the advice of counsel in determining whether to invoke the privilege, but any such determination must necessarily be question-specific. Thus, it follows that the right must encompass a guarantee to contemporaneous advice on a question-by-question basis....Because the district court's order here prohibited Rosenfeld from contemporaneously advising his client, we conclude that the order was unlawful under the Fifth Amendment.