# California v. Byers/Dissent Black

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United States Supreme Court
402 U.S. 424
California v. Byers
Argued: Dec. 8, 1970. --- Decided: May 17, 1971
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
Since the days of Chief Justice John Marshall this Court has been steadfastly committed to the principle that the Fifth Amendment's prohibition against compulsory self-incrimination forbids the Federal Government to comepl a person to supply information which can be used as a 'link in the chain of testimony' needed to prosecute him for a crime. United States v. Burr, 25 Fed.Cas., pp. 38, 40, No. 14692e (CC Va.1807). It is now established that the Fourteenth Amendment makes that provision of the Fifth Amendment applicable to the States. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The plurality opinion, if agreed to by a majority of the Court, would practically wipe out the Fifth Amendment's protection against compelled self-incrimination. This protective constitutional safeguard against arbitrary government was first most clearly declared by Chief Justice Marshall in the trial of Aaron Burr in 1807. United States v. Burr, supra. In erasing this principle from the Constitution the plurality opinion retreats from a cherished guarantee of liberty fashioned by James Madison and the other founders of what they proudly proclaimed to be our free government. One need only read with care the past cases cited in today's opinions to unerstand the shrinking process to which the Court today subjects a vital safeguard of our Bill of Rights.
The plurality opinion, ante, at 431, labors unsuccessfully to distinguish this case from our previous holdings enforcing the Fifth Amendment guarantee against compelled self-incrimination. See, e.g., Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). The plurality opinion appears to suggest that those previous cases are not controlling because respondent Byers would not have subjected himself to a 'substantial risk of self-incrimination' by stopping after the accident and providing his name and address as required by California law. See California Vehicle Code § 20002(a)(1) (Supp.1971). This suggestion can hardly be taken seriously. A California driver involved in an accident causing property damage is in fact very likely to have violated one of the hundreds of state criminal statutes regulating authomobiles which constitute most of two volumes of the California Code. More important, the particular facts of this case demonstrate that Byers would have subjected himself to a 'substantial risk of self-incrimination,' ante, at 431, had he given his name and address at the scene of the accident. He has now been charged not only with failing to give his name but also with passing without maintaining a safe distance as prohibited by California Vehicle Code § 21750 (Supp.1971). It is stipulated that the allegedly improper passing caused the accident from which Byers left without stating his name and address. In a prosecution under § 21750, the State will be required to prove that Byers was the driver who passed without maintaining a safe distance. Thus, if Byers had stopped and provided his name and address as the driver involved in the accident, the State could have used that information to establish an essential element of the crime under § 21750. It seems absolutely fanciful to suggest that he would not have faced a 'substantial risk of self-incrimination,' ante, at 431, by complying with the disclosure statute.
The plurality opinion also seeks to distinguish this case from our previous decisions on the ground that § 20002(a)(1) requires disclosure in an area not 'permeated with criminal statutes' and because it is not aimed at a 'highly selective group inherently suspect of criminal activities.' Ante, at 430. Of course, these suggestions ignore the fact that this particular respondent would have run a serious risk of self-incrimination by complying with the disclosure statute. Furthermore, it is hardly accurate to suggest that the activity of driving an automobile in California is not 'an area permeated with criminal statutes.' Ibid. And it is unhelpful to say the statute is not aimed at an 'inherently suspect' group because it applies to 'all persons who drive automobiles in California.' Ibid. The compelled disclosure is required of all persons who drive automobiles in California who are involved in accidents causing property damage. If this group is not 'suspect' of illegal activities, it is difficult to find such a group.
The plurality opinion purports to rely on United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), to support its result. But Sullivan held only that a taxpayer could not defeat a prosecution for failure to file a tax return on the grounds that his income was illegally obtained. The Court there suggested that the defendant could lawfully have refused to answer particular questions on the return if they tended to incriminate him. Here, unlike Sullivan, the only information that the State requires Byers to disclose greatly enhances the probability of conviction for crime. As I have pointed out, if Byers had stopped and identified himself as the driver of the car in the accident, he would have handed the State an admission to use against him at trial on a charge of failing to maintain a safe distance while passing. Thus, Byers' failure to stop is analogous to a refusal to answer a particular incriminating question on a tax return, an act protected by the Fifth Amendment under this Court's decision in Sullivan. Cf. Marchetti v. United States, supra; Grosso v. United States, supra.
I also find unacceptable the alternative holding that the California statute is valid because the disclosures it requires are not 'testimonial' (whatever that term may mean). Ante, at 431. Even assuming that the Fifth Amendment prohibits the State only from compelling a man to produce 'testimonial' evidence against himself, the California requirement here is still unconstitutional. What evidence can possibly be more 'testimonial' than a man's own statement that he is a person who has just been involved in an automobile accident inflicting property damage? Neither United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), nor any other case of this Court has ever held that the State may convict a man by compelling him to admit that he is guilty of conduct constituting an element of a crime. Cf. United States v. Burr, supra. Yet the plurality opinion apparently approves precisely that result.
My Brother HARLAN's opinion makes it clear that today the Court 'balances' the importance of a defendant's Fifth Amendment right not to be forced to help convict himself against the government's interest in forcing him to do so. As in previous decisions, this balancing inevitably results in the dilution of constitutional guarantees. See, e.g., Konigsberg v. State Bar, 366 U.S. 36, 56, 81 S.Ct. 997, 1009, 6 L.Ed.2d 105 (1961) (Black, J., dissenting). By my Brother HARLAN's reasoning it appears that the scope of the Fifth Amendment's protection will now depend on what value a majority of nine Justices chooses to place on this explicit constitutional guarantee as opposed to the government's interest in convicting a man by compelling self-incriminating testimony. In my view, vesting such power in judges to water down constitutional rights does indeed 'embark us' on Brother HARLAN's 'uncharted and treacherous seas.' Ante, at 458.
I can only assume that the unarticulated premise of the decision is that there is so much crime abroad in this country at present that Bill of Rights' safeguards against arbitrary government must not be completely enforced. I can agree that there is too much crime in the land for us to treat criminals with favor. But I can never agree that we should depart in the slightest way from the Bill of Rights' guarantees that give this country its high place among the free nations of the world. If we affirmed the State Supreme Court, California could still require persons involved in accidents to stop and give their names and addresses. The State would only be denied the power to violate the Fifth Amendment by using the fruits of such compelled testimony against them in criminal proceedings. Instead of criticizing the Supreme Court of California for its rigid protections of individual liberty, I would without more ado affirm its judgment.

## Notes

* ↑ See Cal. Vehicle Code §§ 1-42275 (1960 and Supp.1971).
* ↑ 'The driver of any vehicle involved in an accident resulting in damage to any property including vehicles shall immediately stop the vehicle at the scene of the accident and shall then and there either:
* ↑ If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.' 274 U.S. 259, 263-264, 47 S.Ct. 607.
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