The Right Against Self-Incrimination Under the Georgia and Federal Constitutions: A Microstudy in Federalism

To be honest, I never thought much about rights under the Georgia Constitution when I was a trial judge. I suspect that is the norm given that most law schools train students only on the federal Constitution, so lawyers tend to present arguments only under the federal Constitution. If they do cite the state constitution, they only do so in passing and almost always in lockstep with how similar provisions of the federal Constitution have been interpreted. But as Justice William J. Brennan Jr. eloquently explained in his seminal article almost 50 years ago, state constitutions are an additional and valuable source of individual rights. More recently, Judge Jeffrey S. Sutton has likened the failure to assert state constitutional law claims to the failure to take a second (and possibly game-winning) free throw in a basketball game.

This article examines the right against self-incrimination under the Georgia Constitution, which is expressed through similar language as the federal right, but it has been interpreted more expansively to include affirmative acts, providing certain additional protections for criminal defendants in state courts. This distinct analysis arises for other provisions of the Georgia Constitution as well, and, for some, the Supreme Court of Georgia has not yet construed them at all. Whether crafting a winning argument for a client or resting a judicial decision on proper grounds, these nuances between state and federal constitutional provisions can have significant impacts on the outcomes of cases at the state level. In short, it is important that both the bench and the bar appreciate the differences that can arise when a state constitutional provision is interpreted independently from its federal equivalent because of the different language, history, and context of the provisions. The right against self-incrimination provides merely one example of this federalism in action, but I hope that this article will spur the bench and bar to not necessarily defer to how the federal Constitution has been interpreted when considering how to apply similar provisions of their own state constitutions.

The Georgia Constitution sets out the right against self-incrimination in Article I, Section I, Paragraph XVI: “No person shall be compelled to give testimony in any manner to be self-incriminating.” The similar, federal provision found in the Fifth Amendment of the U.S. Constitution provides that “[n]o person shall . . . be compelled in any criminal case to be a witness against himself.” Reading these without the context afforded by precedent, one might reasonably understand these provisions to outline the same protections. After all, on a textual level, they seem to be just recitations of the same principle. But the Supreme Court of Georgia has interpreted Paragraph XVI to provide unique protections not given by its federal counterpart.

To lay the groundwork for this discussion, let’s first consider some history of the federal right against self-incrimination. The Fifth Amendment was added to the U.S. Constitution in 1791—and has not been changed since. In Boyd v. United States in 1886, the Supreme Court of the United States held that the “compulsory production” of a defendant’s private papers to be used as evidence against him was equivalent to “compelling him to be a witness against himself,” in violation of the Fifth Amendment. Boyd, however, said nothing about compelling a person to act. And then in Holt v. United States, the Court rejected the view that the Fifth Amendment protected affirmative acts but did not distinguish between spoken words and physical evidence reflecting written words.

In 1966, the Supreme Court finally clarified in Schmerber v. California that the Fifth Amendment “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” There, a defendant charged with driving under the influence of alcohol was subject to a blood test over his objection. The Court ruled that the taking of blood from a defendant in this manner did not violate his Fifth Amendment right against self-incrimination because “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate” the right. And then that this evidence was “not inadmissible on privilege grounds” because “although an incriminating product of compulsion, [it] was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner.” Thus, precedent from the Supreme Court of the United States makes clear that the federal right against self-incrimination does not apply to acts.

Now turning our focus to the state, the right against self-incrimination first entered a Georgia Constitution in 1877 and has remained materially the same ever since. In 1879, just a few years after the passage of that constitution, the Supreme Court of Georgia held in Day v. State that the right against self-incrimination protected a defendant from being compelled to incriminate himself by acts, not merely testimony. And later, in Calhoun v. State, the court elaborated that Georgia’s constitutional right “protects one from being compelled to furnish evidence against himself, either in the form of oral confessions or incriminating admissions of an involuntary character, or of doing an act against his will which is incriminating in its nature.” This state precedent reading the word “testimony” in Paragraph XVI to include more than mere oral statements denoted a significant departure from the federal line of cases that continued to limit the right against self-incrimination in such a way.

This notion was brought to the forefront for our consideration more recently in Olevik v. State. Olevik was convicted of a DUI. On appeal, he argued that his right against compelled self-incrimination—preserved by the Georgia Constitution—was implicated when law enforcement officers asked him to expel deep lung air into a breathalyzer to test his blood alcohol level and that the admission of his breath test results violated this right. The court noted preliminarily that, while Paragraph XVI “does not prohibit compelling a suspect to be present so that another person may perform an act generating such evidence,” it does prohibit “compelling a suspect to perform an act that itself generates incriminating evidence.” And the court found that a breath test “requires the cooperation of the person being tested because a suspect must blow deeply into a breathalyzer for several seconds in order to produce an adequate sample.” Because “merely breathing normally is not sufficient,” this constituted an act. Because Paragraph XVI specifically prohibits the compelling of a defendant to perform an act that is incriminating in nature, the court held that the Georgia Constitution does protect against compelled breath tests and that individuals have a constitutional right to refuse to submit to such testing. Olevik highlighted a way in which Georgia’s constitutional right against compelled self-incrimination is applied more broadly than its federal parallel. Because the Supreme Court has repeatedly held that the Fifth Amendment does not apply to acts, a similar breath test would not be protected by the federal right against self-incrimination as it would not involve evidence of a “testimonial” or “communicative” nature.

The Supreme Court of Georgia had another opportunity to explore the bounds of this constitutional right just two years later. Though the Supreme Court of the United States has interpreted the Fifth Amendment to bar the government from introducing a defendant’s exercise of their Fifth Amendment right against them, the right “does not bar the State from using [a refusal to submit to a breath test], in part because the Fifth Amendment gives [defendants] no right to refuse to act in the first place.” After the decision in Olevik, the correlating question arose as to whether the Georgia Constitution prohibited the use of that constitutionally protected refusal against a defendant at trial.

In Elliott v. State, Elliott was arrested for driving under the influence of alcohol and refused to submit to a breath test. She argued on appeal that Paragraph XVI gave her protections that the Fifth Amendment did not and thus prevented the evidence regarding her refusal of the test from being admitted against her. Georgia’s high court agreed, holding that because Paragraph XVI affords an individual the right to refuse a breath test, it also “precludes admission of evidence that a suspect refused to consent to a breath test.” Elliott illustrates that a state constitutional provision may provide the same kind of right as a federal provision—prohibiting the admission of a defendant’s exercise of his or her right against self-incrimination—but for reasons different from federal law, and with applications different from federal law.

A line from Olevik sums up this idea well: “Real federalism means that state constitutions are not mere shadows cast by their federal counterparts, always subject to change at the hand of a federal court’s new interpretation of the federal constitution.” As described above, the Georgia Supreme Court has explained over the years that the “testimony” contemplated by Paragraph XVI covers more than just words. And even when the state’s interpretation leads to an outcome similar to the federal Constitution, the reasons underpinning that outcome may be unique to the state’s legal framework and may end up providing broader protections. This goes to show that a unique analysis must take place at the state court level. Obedience to federal guidance is imperative when a state court considers the meaning of a provision of the U.S. Constitution. But such obedience is not required, or even encouraged, when a state court considers a provision of its own constitution, which has its own text, history, and context. And although the state’s highest court will ultimately have the final word, these issues are raised and preserved in the trial courts, such that it is the trial judges with the help of enterprising lawyers that are on the forefront of these often unresolved issues.

Just this glance at the right against self-incrimination shows that language used in these two legal frameworks may be similar—or even identical—but this does not provide a rubber stamp for state courts to simply act in lockstep with federal interpretations. As Judge Sutton explained, “lockstepping” is the tendency of many state courts to reflexively link the meaning of their constitutional guarantees to the meaning given to federal counterparts. Lockstepping in such a manner is incompatible with our rules of constitutional interpretation, such as fixed meaning, textualism, and the independence of state constitutions. While the federal construction of similar constitutional provisions may be persuasive, true federalism requires that state courts interpret their own state constitutions independently. The Olevik court emphasized that “[s]tate constitutional provisions may, of course, confer greater protections than their federal counterparts, provided that such broader scope is rooted in the language, history, and context of the state provision. . . . In the same way, a state constitution may also offer less rights than federal law, so long as it does not affirmatively violate federal law.”

While state courts are the ones ultimately interpreting these constitutional provisions, it is prudent that practitioners also recognize this dual legal system and the differences in interpretation that can arise as a result. For starters, thoughtful briefing by the parties on state constitutional issues provides helpful insight for a time-crunched court to decide issues often of first impression or at least with little precedent. As noted above, an advocate who makes arguments in line with only federal guidance may be leaving valuable individual rights on the table that are available to them under a state framework. And maybe most importantly, many states’ constitutional provisions have not received the same in-depth attention that has been afforded to their federal parallels. In this way, litigators have the opportunity to argue for novel interpretations in a state court without being beholden to the federal understanding of a right. This is exactly the kind of advocacy we saw in Olevik and Elliott, where the defendants asked for a reading of Georgia’s Paragraph XVI that was unique from the guidance given by the Supreme Court of the United States. The arguments opened the door to more expansive individual rights, based on Georgia’s constitutional history and context without being limited as the federal equivalents have been, and established important precedent for future defendants in the state. To use Judge Sutton’s analogy, these were second free throws that the parties took in their respective cases, and they ended up being the game winners.