Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
ranted by the facts surrounding his case." 425 U. S., at 318 (emphasis added). And, in a subsequent "penalty" case, we distinguished Baxter on the ground that refusing to incriminate oneself "was only one of a number of factors to be considered by the finder of fact in assessing a penalty, and was given no more probative value than the facts of the case warranted," while in Cunningham "refusal to waive the Fifth Amendment privilege [led] automatically and without more to imposition of sanctions." 431 U. S., at 808, n. 5.
Similarly, in Minnesota v. Murphy, 465 U. S., at 438, 439, while "the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege," because revocation was not automatic under the Minnesota statute, we concluded that "Murphy could not reasonably have feared that the assertion of the privilege would have led to revocation." 7 These decisions recognized that there is an appreciable difference between an official sanction for disobeying a direct order and a mere risk of adverse consequences stemming from a voluntary choice. The distinction is not a novel one, nor is it simply offered to "justify departing from this Court's precedents," ante, at 44. Rather it is a distinction that we have drawn throughout our cases; therefore, it is the plurality's
7 The plurality is quite wrong to rely on Murphy for the proposition that an individual is not compelled to incriminate himself when faced with the threat of return to prison. Ante, at 43. In Murphy, we did not have occasion to decide whether such a threat constituted compulsion because we held that "since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations." 465 U. S., at 440. As we explained, "a witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the privilege rather than answer if he desires not to incriminate himself. . . . But if he chooses to answer, his choice is considered to be voluntary since he was free to claim the privilege and would suffer no penalty as the result of his decision to do so." Id., at 429. In contrast to Murphy, respondent has consistently asserted his Fifth Amendment privilege.
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