Ohio v. Reiner - Public Defender Service

Page 1
OHIO v. MATTHEW REINER
No. 00-1028
SUPREME COURT OF THE UNITED STATES
532 U.S. 17; 121 S. Ct. 1252; 149 L. Ed. 2d 158; 2001 U.S. LEXIS 2454; 69 U.S.L.W.
3616; 55 Fed. R. Evid. Serv. (Callaghan) 1171; 2001 Daily Journal DAR 2769; 2001
Colo. J. C.A.R. 1446; 14 Fla. L. Weekly Fed. S 129
March 19, 2001, Decided
PRIOR HISTORY: ON PETITION FOR WRIT OF
CERTIORARI TO THE SUPREME COURT OF OHIO.
DECISION:
Witness who denied all culpability in manslaughter
trial held to have valid privilege against
self-incrimination under Federal Constitution's Fifth
Amendment, where witness had reasonable cause to
apprehend danger from her answers if questioned at trial.
SUMMARY:
A father whose child had died of "shaken baby"
syndrome was tried in the Lucas County Court of
Common Pleas, an Ohio trial court, for involuntary
manslaughter. The father's defense was that the child's
babysitter was guilty. The babysitter informed the court
in advance of testifying that she intended to assert her
privilege against self-incrimination under the Federal
Constitution's Fifth Amendment. The trial court granted
her transactional immunity from prosecution and the
witness testified that she had had no involvement with the
death of the child. The father was found guilty of
involuntary manslaughter at the trial. The conviction was
reversed on other grounds in the Court of Appeals of
Ohio. Subsequently, the Supreme Court of Ohio affirmed
the reversal of the father's manslaughter conviction on the
alternative grounds that the witness had no valid Fifth
Amendment privilege and that the trial court's grant of
immunity was therefore invalid (89 Ohio St 3d 342, 2000
Ohio 190, 731 NE2d 662).
Granting certiorari, the United States Supreme Court
reversed the judgment of the Supreme Court of Ohio and
remanded the case for further proceedings. In a per
curiam opinion expressing the unanimous view of the
court, it was held that the witness' assertion of innocence
did not by itself preclude her invocation of the privilege
against self-incrimination, for the witness had reasonable
cause to apprehend danger from her answers if
questioned at the involuntary manslaughter trial.
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
APPEAL §910.6
WITNESSES §81
-- privilege against self incrimination -- grant of
certiorari
Headnote:[1A][1B]
In a case where a witness in an involuntary
manslaughter trial--having been granted transactional
immunity after informing a state trial court that she
intended to invoke the privilege against self-incrimination

532 U.S. 17, *; 121 S. Ct. 1252, **;
149 L. Ed. 2d 158, ***LEdHN1; 2001 U.S. LEXIS 2454
Page 2
under the Federal Constitution's Fifth
Amendment--testified that she had no involvement with
the death of the alleged victim, the United States
Supreme Court will grant the state's petition for certiorari,
will reverse a judgment of the state's highest court which
held that the witness had no Fifth Amendment privilege,
and will remand the case for further proceedings, where
(1) the defense's theory of the case was that the witness,
rather than the defendant, was responsible for the alleged
victim's death, and (2) in this setting, the witness had a
valid Fifth Amendment privilege, for she had reasonable
cause to apprehend danger from her answers if
questioned at trial.
[***LEdHN2]
APPEAL §487
-- Supreme Court review -- state court decision
Headnote:[2]
The United States Supreme Court has jurisdiction
over a state court's judgment that rests, as a threshold
matter, on a determination of federal law; thus, the
Supreme Court has jurisdiction over a judgment of a
state's highest court which held that a state trial witness
who denied all guilt was not entitled to the privilege
against self-incrimination under the Federal
Constitution's Fifth Amendment--and had thus been
wrongly granted immunity--where (1) the decision at
issue fairly appears to be interwoven with federal law,
and (2) no adequate and independent state ground is clear
from the face of the opinion.
[***LEdHN3]
WITNESSES §72
-- self-incrimination -- extent of privilege
Headnote:[3]
The privilege against self-incrimination under the
Federal Constitution's Fifth Amendment extends not only
to answers that would in themselves support a conviction,
but likewise embraces those which would furnish a link
in the chain of evidence needed to prosecute the claimant;
it need only be evident from the implications of the
question, in the setting in which the question is asked,
that a responsive answer to the question--or an
explanation of why the question cannot be
answered--might be dangerous because injurious
disclosure could result.
[***LEdHN4]
WITNESSES §78
-- decision as to incriminating nature of evidence
Headnote:[4]
It is for a court to inquire whether a witness has
reasonable cause to apprehend danger from a direct
answer so as to be entitled to the protection of the
privilege against self-incrimination under the Federal
Constitution's Fifth Amendment, because (1) the witness'
assertion does not by itself establish the risk of
incrimination, and (2) a danger of imaginary and
unsubstantial character will not suffice.
OPINION
[**1253] [***160] [*18] PER CURIAM.
[***LEdHR1A] [1A]The Supreme Court of Ohio
here held that a witness who denies all culpability does
not have a valid Fifth Amendment privilege against
self-incrimination. Because our precedents dictate that
the privilege protects the innocent as well as the guilty,
and that the facts here are sufficient to sustain a claim of
privilege, we grant the petition for certiorari and reverse.
Respondent was charged with involuntary
manslaughter in connection with the death of his
2-month-old son Alex. The coroner testified at trial that
Alex died from "shaken baby syndrome," the result of
child abuse. He estimated that Alex's injury most likely
occurred minutes before the child stopped breathing.
Alex died two days later when he was removed from life
support. Evidence produced at trial revealed that Alex
had a broken rib and a broken leg at the time of his death.
His twin brother Derek, who was also examined, had
several broken ribs. Respondent had been alone with
Alex for half an hour immediately before Alex stopped
breathing. Respondent's experts testified that Alex could
have been injured several hours before his respiratory
arrest. Alex was in the care of the family's babysitter,
Susan Batt, at that time. Batt had cared for the children
during the day for about two weeks prior [***161] to
Alex's death. The defense theory was that Batt, not
respondent, was the culpable party.

532 U.S. 17, *18; 121 S. Ct. 1252, **1253;
149 L. Ed. 2d 158, ***161; 2001 U.S. LEXIS 2454
Page 3
Batt informed the court in advance of testifying that
she intended to assert her Fifth Amendment privilege. At
the State's request, the trial court granted her transactional
immunity from prosecution pursuant to Ohio Rev. Code
Ann. § 2945.44 (1999). She then testified to the jury that
she had refused to testify without a grant of immunity on
the advice of counsel, although she had done nothing
wrong. Batt denied any involvement in Alex's death. She
testified that she had never shaken Alex or his brother at
any time, specifically on the day Alex suffered
respiratory arrest. She said she [*19] was unaware of
and had nothing to do with the other injuries to both
children. The jury found respondent guilty of involuntary
manslaughter, and he appealed.
The Court of Appeals of Ohio, Sixth District,
reversed respondent's conviction on grounds not relevant
to our decision here. The Supreme Court of Ohio
affirmed the reversal, on the alternative ground that Batt
had no valid Fifth Amendment privilege and that the trial
court's grant of immunity under § 2945.44 was therefore
unlawful. * 89 Ohio St. 3d 342, 358, 731 N.E.2d 662, 677
(2000). The court found that the wrongful grant of
immunity prejudiced respondent, because it effectively
told the jury that Batt did not cause Alex's injuries.
* Ohio Rev. Code Ann. § 2945.44 (1999) states
in pertinent part: "In any criminal proceeding . . .
if a witness refuses to answer or produce
information on the basis of his privilege against
self-incrimination, the court of common pleas . . .
unless it finds that to do so would not further the
administration of justice, shall compel the witness
to answer or produce the information, if . . . [the
prosecuting attorney so requests and] . . . the court
. . . informs the witness that by answering, or
producing the information he will receive
[transactional] immunity . . . ." (Emphasis added.)
The court recognized that the privilege against
self-incrimination applies where a witness' answers
"could reasonably 'furnish a link in the chain of
evidence'" against him, 89 Ohio St. 3d at 352, 731 N.E.2d
at 673, quoting Hoffman v. United States, 341 U.S. 479,
486, 95 L. Ed. 1118, 71 S. Ct. 814 (1951). Hoffman, it
noted, requires the trial court to determine whether the
witness has correctly asserted the privilege, and to order
the witness to answer questions if the witness is mistaken
about the danger of incrimination. Ibid. The court faulted
the trial judge for failing to question sufficiently Batt's
assertion of the privilege. It noted that the Court of
Appeals, in finding a valid privilege, failed to [**1254]
consider the prosecutor's suggestion that Batt's testimony
would not incriminate her, and Batt's denial of
involvement in Alex's abuse when questioned by the
Children's Services Board. The court held that "Susan
Batt's [*20] [trial] testimony did not incriminate her,
because she denied any involvement in the abuse. Thus,
she did not have a valid Fifth Amendment privilege." 89
Ohio St. 3d at 355, 731 N.E.2d at 675 (emphasis in
original). The court emphasized that the defense's theory
of Batt's guilt was not grounds for a grant of immunity,
"when the witness continues to deny any
self-incriminating conduct." Ibid.
[***LEdHR2] [2]The Supreme Court of Ohio's decision
that Batt was wrongly granted immunity under § 2945.44
(and consequently, that reversal of respondent's
conviction was required) rested on the court's
determination [***162] that Batt did not have a valid
Fifth Amendment privilege. In discussing the contours of
that privilege, the court relied on our precedents. We
have observed that "this Court retains a role when a state
court's interpretation of state law has been influenced by
an accompanying interpretation of federal law." Three
Affiliated Tribes of Fort Berthold Reservation v. Wold
Engineering, P. C., 467 U.S. 138, 152, 81 L. Ed. 2d 113,
104 S. Ct. 2267 (1984). The decision at issue "fairly
appears . . . to be interwoven with federal law," and no
adequate and independent state ground is clear from the
face of the opinion. Michigan v. Long, 463 U.S. 1032,
1040-1041, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983).
We have jurisdiction over a state-court judgment that
rests, as a threshold matter, on a determination of federal
law. See Merrell Dow Pharmaceuticals Inc. v.
Thompson, 478 U.S. 804, 816, 92 L. Ed. 2d 650, 106 S.
Ct. 3229 (1986) ("This Court retains power to review the
decision of a federal issue in a state cause of action."); St.
Louis, I. M. & S. R. Co. v. Taylor, 210 U.S. 281, 293-294,
52 L. Ed. 1061, 28 S. Ct. 616 (1908).
[***LEdHR3] [3]The Fifth Amendment provides that
"no person . . . shall be compelled in any criminal case to
be a witness against himself." U.S. Const., Amdt. 5. As
the Supreme Court of Ohio acknowledged, this privilege
extends not only "to answers that would in themselves
support a conviction . . . but likewise embraces those
which would furnish a link in the chain of evidence
needed to prosecute the claimant." Hoffman, 341 U.S. at
486. "It need only be evident from the [*21]

532 U.S. 17, *21; 121 S. Ct. 1252, **1254;
149 L. Ed. 2d 158, ***LEdHR3; 2001 U.S. LEXIS 2454
Page 4
implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be
dangerous because injurious disclosure could result." 341
U.S. at 486-487.
[***LEdHR4] [4]We have held that the privilege's
protection extends only to witnesses who have
"reasonable cause to apprehend danger from a direct
answer." 341 U.S. at 486.That inquiry is for the court; the
witness' assertion does not by itself establish the risk of
incrimination. Ibid. A danger of "imaginary and
unsubstantial character" will not suffice. Mason v.
United States, 244 U.S. 362, 366, 61 L. Ed. 1198, 37 S.
Ct. 621, 4 Alaska Fed. 571 (1917). But we have never
held, as the Supreme Court of Ohio did, that the privilege
is unavailable to those who claim innocence. To the
contrary, we have emphasized that one of the Fifth
Amendment's "basic functions . . . is to protect innocent
men . . . 'who otherwise might be ensnared by ambiguous
circumstances.'" Grunewald v. United States, 353 U.S.
391, 421, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957) (quoting
Slochower v. Board of Higher Ed. of New York City, 350
U.S. 551, 557-558, 100 L. Ed. 692, 76 S. Ct. 637 (1956))
(emphasis in original). In Grunewald, we recognized that
truthful responses of an innocent witness, as well as those
of a wrongdoer, may provide the government with
incriminating evidence from the speaker's own mouth.
353 U.S. at 421-422.
[**1255] [***LEdHR1B] [1B]The Supreme Court of
Ohio's determination that Batt did not have a valid Fifth
Amendment privilege because she denied any
involvement in the abuse of the children clearly conflicts
with Hoffman and Grunewald. Batt had "reasonable
[***163] cause" to apprehend danger from her answers
if questioned at respondent's trial. Hoffman, supra, at
486. Batt spent extended periods of time alone with Alex
and his brother in the weeks immediately preceding
discovery of their injuries. She was with Alex within the
potential timeframe of the fatal trauma. The defense's
theory of the case was that Batt, not respondent, was
responsible for Alex's death and his brother's uncharged
injuries. In this setting, it was reasonable for Batt to fear
that answers to [*22] possible questions might tend to
incriminate her. Batt therefore had a valid Fifth
Amendment privilege against self-incrimination.
We do not, of course, address the question whether
immunity from suit under § 2945.44 was appropriate.
Because the Supreme Court of Ohio mistakenly held that
the witness' assertion of innocence deprived her of her
Fifth Amendment privilege against self-incrimination, the
petition for a writ of certiorari is granted, the court's
judgment is reversed, and this case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
REFERENCES
81 Am Jur 2d, Witnesses 91, 99
USCS, Constitution, Amendment 5
L Ed Digest, Witnesses 81
L Ed Index, Self-Incrimination
Annotation References:
Supreme Court's views regarding proceedings to which
Fifth Amendment's privilege against self-incrimination
applies. 65 L Ed 2d 1306.
What constitutes adequate and independent state
substantive ground precluding Supreme Court review of
state court decision on federal question. 59 L Ed 2d 924.
Necessity and manner of establishing incriminating effect
of answer where witness invokes privilege against
self-incrimination. 95 L Ed 1126.
Prosecutor's power to grant prosecution witness
immunity from prosecution. 4 ALR4th 1221.