PA Superior Court Decides Fifth Amendment Case

On March 5, the Pennsylvania Superior Court decided in Commonwealth v. Green, 2014 PA Super 42 (2014), that Defendant Len Allen Green’s Fifth Amendment right against self-incrimination was violated when, as a condition of his post-incarceration probation for theft, he was ordered to disclose the location of the items he stole.

Green argued that the forced disclosure of the location of the stolen items constituted a violation of his Fifth Amendment right against self-incrimination, notwithstanding the fact that he had already served time for the thefts. Green argued that the disclosure of the location of the items could lead to identification of the people to whom the items were sold, investigations into the theft of other items, and prosecution in other jurisdictions.

In Minnesota v. Murphy, 465 U.S. 420, 426 (1984), the Supreme Court held that a defendant’s Fifth Amendment right against self-incrimination applies not only to criminal prosecution, but also to “any other proceeding, civil or criminal, formal or informal, where answers might incriminate [the defendant] in future criminal proceedings.” The Court in Murphy also noted that such an order may be constitutional if the state makes clear that the answers may not be used in criminal proceedings. Id. at 425 n.7. In Commonwealth v. Fink, 990 A.2d 751, 760 (Pa. Super. 2010), the Superior Court held that a defendant’s Fifth Amendment right against self-incrimination also extends “to any fact which might constitute an essential link in a chain of evidence by which guilt can be established”, and not only to facts which in and of themselves prove guilt.

In a straightforward application of Murphy and Fink, the Superior Court ruled that Green’s Fifth Amendment rights were in fact violated. Since forcing Green to reveal the location of the stolen items could reasonably cause him to fear prosecution, and there was no condition that the information would not be used for prosecution, Green’s judgment of sentence was vacated and the case was remanded for resentencing.