Compelling the accused to shine the light upon himself - a Constitutional No-No
In a recent opinion, our Superior Court, Appellate Division reaffirmed the long standing principle that someone under investigation for a crime has a constitutional right to not become a witness against himself. While this constitutional principle is usually beyond serious debate, once in a while a factual scenario exists that calls upon the courts to define the contours of the right (for example, see this prior post). In the case of State vs. Mylon Kelsey, a police officer was under investigation for beating someone, while off duty, with a flash light. Investigators zeroed in on Mr. Kelsey because witnesses described the person with the flashlight as having emerged from a vehicle known to belong to him. When witnesses were shown a photograph of Mr. Kelsey, he was identified as the person with the flashlight. These witnesses allegedly saw him take the flashlight from the car, use the flashlight as a weapon to strike people involved in an altercation, and then return the flashlight to his vehicle.
As part of the investigation, detectives obtained a search warrant to search the car. While they found an empty flashlight box, no actual flashlight was located. Investigators then obtained an Order requiring Mr. Kelsey to turn over the flashlight, if it was in his possession. This Order was obtained without notice to Mr. Kelsey or his counsel. Upon learning of it, Mr. Kelsey’s attorney moved for reconsideration, and the Court vacated the prior Order, finding that requiring Mr. Kelsey to turn over the flashlight under these circumstances would violate his rights against self-incrimination.
The State appealed the trial judge’s Order that Mr. Kelsey could not be compelled to provide the flashlight. After surveying the law, the Appellate Division affirmed the trial court’s ruling, and held that Mr. Kelsey could not be compelled to provide the evidence that the State would use against him. In its Opinion, the Appellate Division noted that:
As Chief Justice Weintraub ably noted 40-5 years ago, the right against self-incrimination protects a defendant from being “subpoenaed to produce the gun or the loot, no matter how probable the cause, for the Fifth [Amendment] protects the individual from coercion upon him to come forward with anything that can incriminate him."
The court distinguished this case from other cases in which persons under investigation for or accused of committing a crime have been ordered to provide evidence related to their physical attributes such as urine or blood samples, voice print samples, hair and saliva samples and handwriting samples. The Court in Kelsey ruled that producing the flashlight in issue here required conscious communication by the accused indicating his awareness of which flashlight the State was looking for, and would amount to an admission that he had custody and control over the flashlight. Therefore, the court held, compelling him to produce the flashlight would amount to compelling him to become a witness against himself. In the case of handwriting, DNA, voice samples, and the like, the court reasoned, there is no active communication on the part of the accused.
The Monitor would expect the decision in Kelsey to be relied upon by criminal defense attorneys who are seeking to block law enforcement access to evidence when the gatekeeper to the evidence is the person being investigated or accused. Mr. Kelsey's attorney, Scott Krasny, did an excellent job convincing the trial court to reconsider its prior ruling, and the trial court should be commended for not hesitating to revisit and correct its prior erroneous Order.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.