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Incrimination by examination

courtroomWe know that the constitution says we all have a right to not be required to incriminate ourselves: “No person . . . shall be compelled in any criminal case to be a witness against himself.” In some cases, the meaning of that right, and the line-in-sand it draws, are evident enough. In other cases, not so much.

Consider the appeal (formally, a request for writ of certiorari) of the Idaho Attorney General’s office, filed Friday, to the U.S. Supreme Court, from a decision by the Idaho Supreme Court. Here’s the executive summary:

After his conviction and sentence for rape, Krispen Estrada filed a petition for post-conviction relief in the Idaho district court, claiming ineffective assistance of counsel in sentencing. The district court determined that Estrada’s counsel in the criminal case had provided deficient performance by failing to advise Estrada about his privilege against self-incrimination in regard to a court-ordered psychosexual evaluation. The court denied the claim, however, reasoning that Estrada was not prejudiced because he would have received the same sentence because the sentencing court could have properly drawn adverse inferences at sentencing, such as lack of remorse, non-amenability to treatment, and risk to the community, if Estrada had refused to participate in the evaluation. The Supreme Court of Idaho reversed the district court’s finding of lack of prejudice, implicitly rejecting the district court’s determination that the sentencing court may properly draw adverse inferences from silence at sentencing, and holding prejudice was shown because the evaluation “played a role” in sentencing. The question presented is:

Other than in finding the facts and circumstances of the offense, may a sentencing court draw adverse inferences from a defendant’s refusal to cooperate in a pre- sentencing evaluation?

Estrada’s offense is certainly heinous, “beating, choking and raping his estranged wife in front of their children,” then holding off police in a seven-hour armed confrontation. But the question of self-incrimination – in this case, allowing an effective inference of guilt from a decision not to speak – is a lot broader than one case.

In Estrada’s case, he was convicted of the crime – through a plea deal – before the issue of psychosexual testing came up. His guilt or innocence was not at issue; the testing was used to help the judge determine whether he would continue to threaten violence to society. The testing indicated that he did, and the judge sentenced accordingly. A lawyer for Estrada said that the attorney previously handling the case should have fought the testing, on grounds that the convict was effectively testifying against himself, if not for purposes of guilt then for purposes of sentencing, which also matters.

In other words: Can your insistence on your rights be held against you?

There are other cases where we do allow something of the sort. If you’re stopped while driving and suspected of driving under the influence, and refuse to take certain tests, your license can be taken away. It’s not an exact analogy, since driving is a licensed and limited activity, not a general right, but something of the point remains similar.

There’s also the position of a judge who has to decide what level of danger a convicted person may pose to society. Should we say that a judge shouldn’t consider all relevant factors in trying to make the best decision – but only some of them?

The whole area is an unclear piece of the law. As the AG’s appeal notes, “The Lower Courts Are Divided Between Those Jurisdictions That Allow No Adverse Inferences At Sentencing, Those That Allow Adverse Inferences At Sentencing Except To Show The Facts Of The Underlying Crime, And Those That Pro-
hibit Adverse Inferences That Increase A Sentence But Allow Adverse Inferences In Denying A Decrease Of The Sentence.”

There’s no perfect answer. This is one of those cases where various rights and responsibilities do seem to come into collision. It ought to be a useful piece of work for the high court to undertake.

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