BALTIMORE CITY DEPT. OF SOCIAL SERVS. v. BOUKNIGHT
Legal provision: Self-Incrimination
Argument of Ralph S. Tyler, III
Chief Justice Rehnquist: We'll hear argument next in No. 88-1182, Baltimore City Department of Social Services v. Jacqueline Bouknight.
Mr. Tyler, you may proceed whenever you're ready.
Mr. Tyler: Mr. Chief Justice, and may it please the Court:
This case presents two questions.
First, whether a court order directing a parent to produce her child compels incriminating testimony in violation of the Fifth Amendment and, secondly, whether in this case the mother's privilege claim is overcome by the important societal interest in protecting a child plainly at risk.
I will address the first of these issues and the child's counsel will address the second.
The child who is the subject of this case was born in October 1986.
As of four months of age he had been hospitalized twice with confirmed fractures of major bones.
During his second hospitalization his mother was observed shaking him and dropping him into his crib while he was in a cast.
The Baltimore City Department of Social Services filed a petition with the juvenile court in Baltimore asserting that Maurice was a child in need of assistance, as defined by Maryland law.
A court hearing was held on that petition at which all parties were represented by counsel and the parties stipulated to the facts of the petition.
Maurice was placed in foster care, where he remained for some months when the order was modified to return physical custody to the mother.
Unknown Speaker: Why was that done?
This is another "Poor Joshua" case, isn't it?
Mr. Tyler: It certainly has absolutely the same tragic facts, Your Honor.
Unknown Speaker: Can you defend that action?
Mr. Tyler: I think... certainly with benefit of hindsight it was a great error to return the child.
The record reflects that the agency opposed that before the Master, but did not take an appeal.
Unknown Speaker: Why do we need hindsight?
Wasn't it apparent at the time?
Mr. Tyler: Well, I would have to respectfully answer no, it wasn't apparent.
The parties determined and the court concurred that the child should be returned.
At a further hearing in the case in August, the parties, again all represented by counsel, agreed to an order of protective supervision finding Maurice to be a child in need of supervision under the supervision of the Department of Social Services and the mother had physical custody.
Importantly, that order provided, among other things, that the mother was required to cooperate with the Department.
She, represented by counsel, agreed to that order.
Agency personnel have last seen this child in December... in September of 1987.
In April of '88, after making repeated efforts to locate the child, the Agency filed a petition in the juvenile court in Baltimore seeking a review of the court order and ordered a show of cause and a petition for contempt.
After arrest, the mother, with counsel at her side, told the juvenile court that the child was with the mother's sister in Dallas.
This proved to be false and she gave other information as to the child's whereabouts, which similarly proved to be false.
The court held her in contempt and sent her to jail providing that she could purge herself of contempt by either producing the child before the court or revealing his exact whereabouts.
Unknown Speaker: Where is she now?
Mr. Tyler: She is in the jail in Baltimore City, Your Honor.
Unknown Speaker: Mr. Tyler, does... would the act of production of the child be a testimonial statement of some kind?
Mr. Tyler: Not in our view, Your Honor.
Unknown Speaker: Well, in cases where orders have been entered to require turning over some kind of paper, this Court has indicated in its opinions that to do so has testimonial aspects.
Why wouldn't turning over the child have some testimonial aspects as to her possession or control, or something of that sort?
Mr. Tyler: --Because, Justice O'Connor, in the cases where the Court has said that there would be testimonial content to an act of production, the identified variables have been existence, possession, authentication.
And if those items are foregone conclusions or not in dispute, which we submit is this case, then the act of production has no testimonial effect.
Unknown Speaker: Well, is that strictly speaking true?
You don't know where the child is.
She has apparently given untrue statements.
And so it isn't known.
And I assume the state would want to use the testimonial aspects if it were ever to file criminal proceedings against her.
Mr. Tyler: It is, of course, true that we do not know where the child is.
But what we do now and what has never been disputed in the case is that the mother has custody of the child.
Unknown Speaker: Physical custody?
Mr. Tyler: She... she certainly had physical custody.
She affirmatively asserted that she had custody before the juvenile court.
But for the juvenile court's--
Unknown Speaker: Well, but the custody... she has not conceded... correct me if I'm wrong, perhaps she has... that she now has physical custody of the child.
She couldn't while she's in jail.
And she hasn't conceded, I take it, that she had physical custody of the child the day before she went before the court.
Mr. Tyler: --Well, what she... what she did concede, Justice Kennedy, at the hearings in the juvenile court in April of '88 is, first, her counsel on her behalf represented that the child was fine and that there was no basis for concern.
Secondly, she was then arrested and brought before the court and gave the court an address in Dallas where the child was to be found.
She gave other officials information about the child being with a relative in Baltimore or... and relatives elsewhere.
At no point has she asserted an inability to comply with the order and... nor has she ever claimed that there has been an intervening custodial relationship which somehow relieved her of her undisputed custody.
Unknown Speaker: Well, certainly there may not be any question about her legal custody.
But the fact of physical possession and control would seem to me to be testimonial aspects of compliance with the production.
Mr. Tyler: --Well--
Unknown Speaker: I just don't understand why it wouldn't be.
Mr. Tyler: --Well, it wouldn't be in our view, Justice O'Connor, because this is the only living parent of a child who at the time the case was in the juvenile court was 19 months old.
There is no one else that the state can look to and, indeed, she has pointed us to no one else.
Unknown Speaker: Well, that may be an argument for an exception.
It seems to me, to make it even more testimonial significant.
Let me ask you this.
Would you have any objection to giving use immunity?
I understand use immunity is available under Maryland law.
Mr. Tyler: --Your Honor, the status of immunity under Maryland law has changed dramatically while this case has been pending and as of April... as of July of '89 there is a broader immunity statute in Maryland.
Unknown Speaker: Well, wouldn't use immunity suffice for your concerns and the concerns of... of others in this very important case?
If you say it's not testimonial, then you can have no objection to use immunity.
Mr. Tyler: --Well, our objection, Your Honor, is that she has asserted a Fifth Amendment privilege which we claim does not exist.
If she were asked to stand in a lineup, she could not say to the State of Maryland, I will not do so until give me immunity, because that Fifth Amendment privilege she does not have.
It is our view that that is this case.
Unknown Speaker: Well, if we thought she did, is Maryland now in a position to grant limited use immunity for the testimonial aspects of the compliance with the production order?
Mr. Tyler: Yes.
As a matter of law, that would now be possible, Your Honor.
It was not possible at the time the case was pending in the juvenile court.
But I would stress that the state that the state--
Unknown Speaker: And the state could make it a laser-like limited immunity so that just the testimonial aspects of production could be protected, I gather.
Mr. Tyler: --Yes.
But, again, I would stress that first we should not be put to that choice until she prevails entirely in this Court as would any person who was asked to perform an act if it is not protected by the Fifth Amendment.
The state should not be required to provide immunity because, for example, as the court noted in Braswell, there are costs to doing so.
The costs of granting immunity should be considered and the state should not be required to grant it until she absolutely prevails here.
But the state's position, we believe, is supported really by two lines of authority in this court.
First, the Schmerber line of authority and then the Fisher and act of production cases.
The Schmerber line certainly established that the general rule is that the Fifth Amendment does not relieve a person of the obligation to produce incriminating evidence.
And we submit that the great flaw in the decision below, and a flaw which is largely conceded in the brief of the Respondent, is to put all the weight in the case on the potential incrimination of producing the child when in fact that is only half the test and that we do not dispute that it may have some incriminating effect.
But that does not make it testimonial any more than a person is relieved of the obligation to provide a blood sample, a handwriting exemplar, stand in a lineup, and so on.
Further, the elements in the act of production cases of existence, possession, authentication are here not in dispute.
Maurice was with his mother.
She has never claimed to the contrary.
She has never claimed that she cannot comply with the court order.
Her sole defense in this case and the holding of the Maryland court was not that she could not comply, but that she need not comply.
That the order was... was void the moment it was entered.
And that, in our view, is a dangerous and unwarranted extension of the Fifth Amendment privilege.
To hold as a matter of federal constitutional law that a parent cannot be required to produce her child in court because to do so would constitute testimony, would ultimately remove from the juvenile court the single most important power it must have, and that is the minimal power to require a parent to bring her child before the court so that the court can satisfy itself that the child is safe or if not safe, to provide protection.
And that is what is at issue in this case.
It is the power of the court to command the parent to bring her child into court.
I reserve the balance of my time.
Unknown Speaker: Thank you, Mr. Tyler.
Argument of Mitchell Y. Mirviss
Mr. Mirviss: Mr. Chief Justice, and may it please the Court:
The second question in this case considers whether the important societal interest in protecting children at risk of serious injury can overcome the privilege against self-incrimination.
At two levels, this issue has extreme ramifications.
First, this Court must decide whether the needs of my client, an infant who is defenseless, who has been previously abused and whose whereabouts have been unknown for the past 18 months, must be abandoned in favor of an unprecedented extension of the... of the Fifth Amendment.
Second, if this Court decides against Maurice, family courts and juvenile courts across the country will lose their parens patriae authority to protect thousands upon thousands of children from serious abuse.
Unknown Speaker: Well, why is that so if limited use immunity is available for just the act of production?
Mr. Mirviss: Your Honor, limited use immunity is available only upon the consent or the request of the state's attorney.
The state's attorney was not a party to the juvenile court proceeding.
The state's attorney has discretion whether his or her law enforcement interests outweigh the needs of the juvenile court.
The juvenile court does not have the power to confer use immunity nor did any of the other parties in the juvenile court proceeding.
Similarly, in other states where use immunity may not be available, that solution... would not assist the juvenile court at all.
In this particular case, however, limited use immunity would satisfy the need for Maurice's production, but it is a speculative assumption.
And if we look at the availability of immunity for every conflict which arises between civil regulatory systems and potential incriminations, then the entire line of cases of this court, dating from United States v. Sullivan in the income tax reporting system through wartime price regulation in Shapiro v. United States, on through deterrence of drunk driving and traffic accident reporting in Byers v. California, would automatically fall out.
Immunity is not the answer that this Court has held to those fundamental clashes between civil regulation and potential incriminating disclosures.
Unknown Speaker: Mr. Mirviss, straighten me out on one thing.
Had she not given assurance that the child would be produced to the court?
Mr. Mirviss: Justice Blackmun, the mother, through her counsel, informed the court that the child would be produced and that the mother was on her way.
Unfortunately, the mother never appeared in court and the mother never produced the child.
Unknown Speaker: But counsel gave that assurance?
Mr. Mirviss: That is correct, Your Honor.
Unknown Speaker: Her counsel?
Mr. Mirviss: Her counsel.
In the view of the court below, the mother was lying to the court and to her counsel.
Your Honor, the impact of this case is dramatic.
In every state juvenile courts would lose the power to compel parents who are suspected of maltreating their children to bring their children to court.
Any element of suspicion would be enough to block the juvenile court's inherent or statutory powers.
Unknown Speaker: Is that... is that the way it usually works or does the social welfare worker simply have the authority to go out and investigate the home and take the child?
I take it... would the social welfare worker need some kind of warrant in order to do that or--
Mr. Mirviss: Ordinarily, and in Maryland, the statute governing child protective services investigations has a probable cause requirement written into it such that a social worker with a police officer can go into a home when there is probable cause to believe that a child is in danger.
Unknown Speaker: --There's a... as I say, it would be an exigent circumstances so no warrant is required?
Mr. Mirviss: That's correct, Your Honor.
Unknown Speaker: Isn't this the way it usually happens?
Mr. Mirviss: --That is the ordinary course in emergencies.
However, there are cases where reports of abuse... of possible abuse or neglect come in through other methods.
In other words, independent agencies, such as a school or a hospital, may phone in a report.
The social worker or the police go out to investigate but no one is home, they're not let in, they're not able to find the child.
But those cases arise and produce the need to go to court to compel the parent to produce the child.
One can imagine a sexual abuse case where a report comes from the school of extreme behavioral problems and possible statements of sexual abuse.
The social worker goes out to the home and not gained access to the child.
In that situation, the only other authority which can assist is the juvenile court or the family court.
Unknown Speaker: Mr. Mirviss, it seems to me the record is silent about a father.
Is there a father in this picture at all?
Mr. Mirviss: Your Honor, my client's father was killed approximately a year and a half ago to two years ago... I believe in March of 1988... in a drug-related shooting incident.
Unknown Speaker: Were they married?
Not that it makes any difference, I guess.
Mr. Mirviss: No, Your Honor, they were not married.
Unknown Speaker: But just to conclude the point, you're saying that there are scores, hundreds, many cases in which courts today routinely issue subpoenas to parents requiring the parents to come to the court with the child?
Mr. Mirviss: No, Your Honor.
What we believe will happen is if the juvenile court loses its power to compel parents to produce children, then--
Unknown Speaker: Well, but I mean, does it now exercise that power on a wide scale?
Mr. Mirviss: --Not on that scale, but that power is the authority underlying social worker access to children and into parents' homes.
If in fact social workers cannot tell parents that if they do not cooperate, they can be arrested and brought to court to bring their children, then parents will have a much greater incentive to not cooperate.
They will essentially be immunized by the Fifth Amendment.
There will be no power from the juvenile court to compel, and the social worker will be resigned to finding the child through the social worker's own wiles.
That's met that--
Unknown Speaker: Well, I take it then that in most cases the only testimonial implications of producing the child are something that's known already through independent evidence that the child was living at the house and that the child has injuries.
That's... that's not something that's protected by the Fifth Amendment.
The testimonial aspect is, in this case, where the link between the parent and the child could provide a very important chain in a criminal prosecution.
Mr. Mirviss: --Your Honor, the testimonial inferences that could be drawn from the production of this child are slight, just as they would be in that situation.
In both cases there is a legal order of custody.
In both cases there is a presumption of continuing custody as a matter of state law.
In both cases there is... there are avenues for the parent to comply with the request that the child be produced for inspection without in any way involving the parent directly in the child's production.
Ms. Bouknight has alternatives available to her which she has not chosen to exercise.
And those alternatives do not involve any testimonial incrimination.
She could use her lawyers to produce the child.
She could arrange for the child's production anonymously.
She could use another privileged confidante.
Those have not been utilized by her, and yet none would involve any type of testimonial incrimination.
Unknown Speaker: Mr. Byers... I mean, Mr. Mirviss, are you going to address the California v. Byers aspect of the case?
Mr. Mirviss: Yes, Your Honor.
This case squarely falls within California v. Byers.
In that case, the court upheld a less vital state interest, the adjudication of civil property damage claims against appreciably stronger Fifth Amendment interests.
Byers held that neutral noncriminal statutes can compel incriminating information if they are part of a civil regulatory system which in no way targets criminal activity.
That was a plurality opinion, and Justice Harlan joined that opinion to create a majority by establishing a balancing test when valid civil governmental interests are asserted against possible Fifth Amendment incrimination.
Justice Harlan phrased the balance test by looking at the nature of the governmental interest, the nature of the type... or the type of incrimination which would incur, and, finally, the necessity for the information which would be produced.
Under either approach, the plurality approach, or Justice Harlan's approach, this case amply satisfies those tests.
In this case we have a specific neutral court which is acting not to further any type of criminal prosecution but only to serve one purpose, and that's to ensure my client's safety.
And, second, a court exercising authority specifically granted to it by a neutral statue within an entire regime--
Unknown Speaker: Well, it's a little different, isn't it, because here the operation of the contempt order is particularly individualized and based on specific showings that also lead to criminal prosecution probably.
And so it's not really exactly like Byers is it?
Mr. Mirviss: --Your Honor--
Unknown Speaker: Much more individualized.
Mr. Mirviss: --Your Honor, Byers focused on the general risk or the general degree of incrimination.
Byers, the defendant in that case, had a tremendous personal fear of incrimination.
He was already under indictment for two counts.
There is no doubt that the information he was required to provide, his name and address, would be vital elements within any prosecution against him.
Nevertheless, both the plurality and Justice Harlan's approach looked at the statutory--
Unknown Speaker: Well, but in Byers you have a system whereby everybody involved in an accident has to file a report.
Mr. Mirviss: --That's correct.
Unknown Speaker: Here it's only the person whose conduct is such to give rise to concern for the physical safety of the child that would lead to the imposition of a contempt order that would give rise to your suggested Byers exception.
Mr. Mirviss: Your Honor, the concerns that could prompt this juvenile court to exercise its statutory authority are not limited to instances of extreme abuse.
They could extend to the whole host of issues which the juvenile court addresses on a regular basis.
Delinquency cases, truancy cases, runaway cases, neglect cases, are all part and parcel of the juvenile court's docket.
All of those cases could invoke or could require a child's production to court.
And a child's production to court is not necessarily to prove that the child has been abused.
It could be to facilitate the child's placement into substitute care which in fact was part of the reason for the court's order here.
Unknown Speaker: Mr.--
Mr. Mirviss: The court divested the mother of custody in order that the child, the infant, be placed in emergent foster care.
Unknown Speaker: --May I ask you a question?
You've suggested the various ways in which compliance with the order would be possible without giving incriminating testimony.
But you haven't considered... and I don't know quite what the answer is... the possibility that the child may not be alive.
And if that's the fact and that's suggested in your opponent's brief, that there's a homicide investigation going on and so forth, how can compliance with the order be had without giving incriminating testimony?
Mr. Mirviss: Your Honor, if in fact the Respondent is not able to comply with the court order, it is her duty to inform the court that she is no longer able to comply.
Essentially she is required to plead impossibility.
This Court, in the case of--
Unknown Speaker: Would that be incriminating?
Mr. Mirviss: --Your Honor, the mere statement that she is unable to comply would not necessarily be incriminating.
Unknown Speaker: But do you think the judge would take that?
Mr. Mirviss: That, of course, would be up to the judge's discretion.
Under the United States v. Rylander--
Unknown Speaker: She is obviously unable to comply while she's in jail.
Mr. Mirviss: --Well, Your Honor, she still has privileged intermediaries she could utilize.
But if we look at the scenario of the child being dead--
Unknown Speaker: Right.
Mr. Mirviss: --her explanation for why she cannot comply is not a violation of the Fifth Amendment.
Under United States v. Rylander this Court specifically held that a party unable to comply with a valid unappealed court order is not able to assert the Fifth Amendment as an excuse for explaining to the court why she cannot comply with its valid court order.
And that principle extends back for decades and decades for the burden that any individual must face when confronted with a court order or even a burden of persuasion that an individual bears in this civil or criminal proceeding.
The Fifth Amendment does not shift the burden of proof upon the state or the burden of persuasion away from her.
I would like to also point out that in addition to the alternatives the mother has in this case, the actual order of the court is very limited in terms of its incursion upon the Fifth Amendment.
The mother is not required to testify.
The mother is not required to make any type of oral disclosure.
She need not provide records or documents which convey the thoughts, beliefs, or feelings of her.
Those are all the fundamental principles that this Court has upheld in looking at acts of production.
Your Honor, my time is up.
That will conclude my remarks.
Unknown Speaker: Thank you, Mr, Mirviss.
Argument of George E. Burns, Jr.
Mr. Burns: Mr. Chief Justice, may it please the Court:
Turning to issue number one is... there is no question about where legal custody is.
In terms of physical custody, I think Mr. Mirviss answered Mr. Tyler's contention when he said, and I quote,
"The child's whereabouts have been unknown for the last 18 months. "
Obviously, we know who has legal custody.
We don't know physical custody after that.
So I think in that case obviously is... producing the child would be incriminating.
The state also--
Unknown Speaker: Well, stop--
--In what... in what respect?
Mr. Burns: --Well, if, for example, the child is injured, if the child were unfortunately dead, then admitting that you had custody of that is certainly a reasonable conclusion that you're responsible for the injuries or the death of the child.
Physical custody at that moment, as opposed to sometime in the past that you had legal custody and physical custody.
Obviously there could have been intervening circumstances that you had no control over that caused this condition to occur.
But if you produce the child, it's difficult to see how you can draw any conclusion except that you have now current physical--
Unknown Speaker: I don't follow that.
If I may interrupt.
The production of the child on November 7th, 1989 admits physical custody on November 7th, 1989.
The child might have been killed or injured on August 1st, 1989.
How does the later fact necessarily prove the former?
Mr. Burns: --I... I'm not sure I follow, Justice Stevens.
What I think I'm saying is this, if I say I produce the child today, there is some injury... if I'm the defendant... it seems to me that doesn't necessarily prove... I'm not suggesting that that proves beyond a reasonable doubt.
I'm suggesting it is incriminating... is that I have the child, I have this child who's injured and I'm admitting physical custody right now.
I mean, I think it's, for example, a byword of police offers... is whoever you find next to the body there's a 50 percent chance they're the person that did it.
So, while it wouldn't prove beyond a reasonable doubt certainly, I think it certainly is incriminating and certainly could be used by the state if they had other evidence for prosecution.
Well, then, any... any mother who is given custody by a juvenile court and ordered to appear every so often perhaps or for reason, can always defend by saying I'm not going to produce the child I have custody of because it might incriminate me.
Mr. Chief Justice, I think that's incorrect for two reasons.
One, obviously in many cases there is no question... in this case it's conceded by the state that you have this reasonable possibility of incrimination in terms of the ongoing homicide investigation.
Obviously if that doesn't exist, if no one thinks anything happened to the child, there is going to be no problem.
Unknown Speaker: Well, but our cases say, you know, that the court can't inquire in any detail once the claim of privilege is invoke.
That it... it... it's almost up to the witness to--
Mr. Burns: --I think that's to some extent, Mr. Chief Justice.
But I think the court can say, is this reasonable?
Is there something to suggest that, the mere fact that someone says it.
But I think the second part may be more important.
It's been contended that the court of appeals has said mothers don't have to comply with orders.
Well, the court of appeals didn't say that.
The court of appeals said the way to proceed is under the Maryland statute 3-831 which is a neglect statute, which, if you're under order, it seems to me and it seemed to the court of appeals, to bring the child in to comply with the order, you have violated the neglect as a matter of law.
Unknown Speaker: --Why can't you raise the same privilege when you're ordered to bring it in under that statute?
Mr. Burns: --Because under... no, you wouldn't be ordering him to bring it under that statute, your Honor, you would be prosecuting him for the failure to bring it in.
So I don't think there is a privilege there.
Obviously a prosecutor, any prosecutor, can go to the person and say we're going to prosecute under the statute.
If indeed you produce the child in good health, we won't prosecute or this will be a mitigation factor.
So there is no question that the state still has the power in this case.
In that case there would be nothing to do with the privilege against self-incrimination.
Unknown Speaker: But it would be by a criminal prosecution rather than by a juvenile proceeding?
Mr. Burns: Well, it... it... it's a funny statute.
It's literally criminal but it's in our court's article 3-831.
Unknown Speaker: Yeah, you put them in jail under the neglect statute but you can't put them in jail for refusal to produce.
Mr. Burns: Well, I think the key difference... as a practical matter I have to agree with that, Justice White.
But I think the key difference is this.
Under the 3-831 there are two possibilities obviously.
If the child is unharmed, that acts as a good reason for the mother to bring her in.
If it is not unharmed, and the mother isn't going to comply, it's a means of punishing her for not following this court order.
Unknown Speaker: Putting her in jail.
Mr. Burns: But when we're talking about civil contempt, however, we're looking at two problems.
Not just putting her in jail for that order.
We're also looking at the problem of we're going to have you do something that may be testimonial for some future prosecution, another unrelated criminal act--
Unknown Speaker: Like for a--
Mr. Burns: --which I think gives the distinction.
Unknown Speaker: --Like for a neglect prosecution.
Mr. Burns: No, Your... no, Justice White.
I was thinking, for example, child abuse, assault, or even unfortunately homicide.
I think that's the distinction.
Unknown Speaker: Mr. Burns, let's talk about homicide.
Suppose you have a very nasty divorce and the husband gets custody of the child and let's assume it's conceded that the husband has locked the child in a cellar with three days' worth of food and everybody knows that.
And the mother brings the husband in the court and gets the court to demand from the husband where the child is.
The child is starving to death.
It's two and a half days now, right?
Mr. Burns: Well, Justice--
Unknown Speaker: And the court cannot compel the husband to--
Mr. Burns: --Well, Justice Scalia, I think as this case shows, that the court being able to say bring it in three days and these cases, if they are determined, is not going to have any effect, if indeed... if indeed everything--
Unknown Speaker: --That's not going to have an effect?
Mr. Burns: --Well, Your Honor, with--
Unknown Speaker: We say you're going to stay in jail until you produce the child.
Mr. Burns: --Well, Your Honor, I think the same thing.
You can say under 3-831 there may be a duty.
Obviously, if this child is being held in a room without food and that's what you're saying, this is certainly a neglect statute and you can be held in jail.
But I think the other problem is if indeed... and that's certainly a terrible hypothetical... but if indeed--
Unknown Speaker: I'm not worried about neglect.
I'm worried about saving the child.
Mr. Burns: --That's certainly true, Justice Scalia.
Unknown Speaker: And prosecuting him for murder if the child dies.
Mr. Burns: Certainly true, Justice Scalia.
But if indeed we're going to say all that matters is that, then I don't see why the obvious solution is not to torture the person to get the information because that's the only sure way we have in this three-day time limit.
As the Morgan case shows, there are people that are willing to stay a lot longer than three days in jail.
So if the only thing we're going to focus on and we're going to ignore all constitutional rights, then we also have to ignore that.
Unknown Speaker: I suppose for the same reason that we don't torture people after they've been convicted of murder.
Mr. Burns: Well, Your Honor, I agree we shouldn't.
But I don't see how--
Unknown Speaker: Well, no.
To say... to say you can impose imprisonment for a coercive purpose that does not... that does not offend the Fifth Amendment because it's a coercive purpose that has some other societal end than convicting the individual of a crime, the end of saving the life of the child... to say that you can't use torture for that is... is no more extraordinary than saying that you can't use torture for purposes of punishing him after he's been convicted of--
Mr. Burns: --And I agree.
Unknown Speaker: --a crime.
But it's an entirely different question--
Mr. Burns: Well, Justice--
Unknown Speaker: --whether you can use normal means of punishment to... to fulfill an important societal end such as--
Mr. Burns: --Sure, Justice--
Unknown Speaker: --saving the life of the child.
Mr. Burns: --Scalia.
But I think the problem, the underlying premise there is that if you say we're holding you for civil contempt, the person will immediately say this is where the child is.
If we're holding you under 3-831, although we're holding you in the same jail, the person will not say.
I think the problem here is... is... I agree with your hypothetical if there were a real need for it.
Unknown Speaker: There is no child abuse statute in existence.
Mr. Burns: You mean as a hypothetical, I assume.
Unknown Speaker: Yes.
Mr. Burns: Well, the difficulty there--
Unknown Speaker: Then, tough luck, kid, you're going to have to die, huh?
Mr. Burns: --Justice Scalia, I think there the question is, is can the legislature say, well, we don't like the Fifth Amendment very much so we won't provide any statutes to protect against these circumstances and get rid of the Fifth Amendment.
Unknown Speaker: Well, it seems to me you're begging the question.
Mr. Burns: I'm sorry, Your Honor--
Unknown Speaker: It seems to me... or, I could think of another hypothetical.
But you have to fall back on the position that if there is no other way to prevent the social harm, even if it's a social harm as... as severe as the death of an individual... if there's no other way to prevent that other than to punish the person who doesn't give you the information to prevent it, that's too bad; you must let the harm occur.
Mr. Burns: --The difficulty, Justice Scalia, is I may in the abstract agree with that.
The problem I'm pointing out is here in the real world, in Maryland, that problem does not and cannot exist.
And so the state is not saying that this is the situation.
The state is simply saying we don't want to proceed the other way.
We have to do it because.
There's no reason.
Unknown Speaker: But they're entirely... they're free to do that if there is no problem in doing it that way.
Mr. Burns: --Well, I think then--
Unknown Speaker: What do you do with the income tax cases where... where you have to go in and say what your gambling earnings were?
Mr. Burns: --Well, for example, Justice Scalia, certainly you have a duty.
You have a duty to file an income tax return.
But the question is--
Unknown Speaker: And this woman has a duty to produce the child.
Mr. Burns: --Yes, Justice Scalia.
But the question is, can the state say, well, we're not going to prosecute Burns for not filing his income tax return.
We're going to hold him civil contempt until he files it because we're very interested in him filing an income tax return.
So, the state's using the option... in fact, in this case it seems to me if the state can use that option, we really don't have much need of criminal laws.
For example, let's suppose we know someone has illegal narcotics.
Instead of going to the trouble of prosecuting them, we bring them in, say, you come in, bring us the narcotics, or you stay in jail.
It's a much simpler procedure and we don't have to worry about things like proving beyond a reasonable doubt--
Unknown Speaker: That ignores the context here, which is a civil... civil proceeding which has many other ends in view than the enforcement of the criminal law, which is what Byers and the Holmes opinion in the Sullivan case are about.
Mr. Burns: --Well, I think, Mr. Chief Justice, the problem with Byers is that we're talking about a statute.
We're not contending any statute is unconstitutional in this case.
What we're contending... in Byers I might point out... and in page 14 of our brief we quote... says the Fifth Amendment does protect what may be incriminating specific inquiries.
So, Byers isn't saying that the Fifth Amendment doesn't apply in any case.
They're saying in a general statute where there's nothing on its face that looks incriminating, it may be okay.
Unknown Speaker: It may be okay to require the production of statements by someone who has a very substantial claim that those statements incriminate him.
Mr. Burns: Well, Byers of course... in... in Byers, it seems to me, that when you... if you look at the statute and you look at the conduct, there may be by chance that case.
But when we're looking at thousands of motorists, it's hard to say that this statute is aimed at any motorist.
This particular order is aimed at precisely one person who the state at the same time... and there's been something made of this distinction between the state's attorney and others... but, of course, the attorney general is part of the state, indeed, represents on appeal cases from the state's attorney.
So I don't think you can say because the state's attorney is involved it's easy enough to contact the state's attorney and get them involved.
Unknown Speaker: Well, what does that point go to?
Mr. Burns: I think that point goes to this whole question that we can't do anything because it's a civil matter.
Because obviously it does have criminal ramifications, and there is something that can be done.
Unknown Speaker: If there were not this investigation of the possible murder, you wouldn't have any case, would you?
Mr. Burns: I think if there were no evidence that there's some risk, yes--
Unknown Speaker: Is that the only point you have?
Mr. Burns: --Well, I think that goes to that there's a reasonable... a reasonable opportunity--
Unknown Speaker: That's the only thing that you have?
Mr. Burns: --I think that's true, that it goes to reasons... if there were no reasonable, I would agree--
Unknown Speaker: So anybody that's ordered to produce the child, all they have to do is start a rumor that the child is dead?
Mr. Burns: --I don't think so, Justice Marshall.
Unknown Speaker: No?
Mr. Burns: I think the police--
Unknown Speaker: Well, why not?
Mr. Burns: --I think the police are more sophisticated than that.
What I mean by that is, in this case... and we've set out... is you have the records of the social workers talking to the police, giving their opinions, not giving their opinions for any reason except they obviously are conducting the investigation.
You have an extensive homicide investigation in this case.
I think it's a far different thing, the mere fact that I may ask a police officer to drop by and see if everything is okay.
Well, that doesn't necessarily mean that there's any real risk of... of prosecution.
In this case I think the state has throughout quite rightly conceded that under all the facts and circumstances it would be unreasonable to conclude that there wasn't a risk of prosecution.
Unknown Speaker: [inaudible]
Mr. Burns: I... I agree, Justice Marshall, and I think that was one of my earlier case... my earlier points.
In many of these cases if no one is concerned that there is any criminal prosecution possibility, then you don't have the problem.
But, of course, the other thing turns around.
if you're not concerned with that, then you're not concerned either with use immunity because the simple point is if there is no... if the state... no matter what the defendant may say, if the state doesn't believe there is a serious risk of this being involved in criminal prosecution, you simply give use immunity and that resolves the entire problem.
So I think our point is that this doesn't really present a balancing case because there are reasonable alternatives which the state can utilize if--
Unknown Speaker: The only way to save the kid who is dying with two and a half days food is to say, okay, you tell us where he is, and if he's dead, you can walk free.
That seems rather an extreme... an extreme price for the state--
Mr. Burns: --I don't think so--
Unknown Speaker: --to pay.
Mr. Burns: --Justice Scalia.
What I'm saying is, if you really believe that... if those facts are known to the state, obviously you do have this case.
What I'm saying, in a case where the state is going to argue... and that was my answer to Justice Marshall... in a case where the state is going to say the defendant may say this... there is a concern with prosecution but we know better, we know perfectly well the child is in great health with another family member.
Well, the state can call that bluff very easily.
All I'm saying is, in a case where the state is not concerned with that, there is no problem.
Unknown Speaker: Well, Counsel, correct me if I'm wrong.
As I understand the case, although there is a possibility of a homicide here, there is also the very real possibility that while we sit here this morning that child is in need of care.
Mr. Burns: I suppose--
Unknown Speaker: And... and... is that a possibility, a significant possibility in this case?
Mr. Burns: --I think it's... I can't say it's not a possibility.
I think under all the facts and circumstances whether it's significant is... to be frank, your judgment is as good as mine under these facts where the child is--
Unknown Speaker: Well, on... on this--
Mr. Burns: --gone for 18 months.
Unknown Speaker: --this record of previous demonstrated serious abuse, let's stipulate, if we can, that it's a serious possibility.
I just want to make very clear that your answers to Justice Scalia's question is that the Fifth Amendment overrides any interest we have in the welfare of that child in ordering her production.
Mr. Burns: Well, I think, if I may, give two answers to that.
First, I think the answer would be, yes.
And, of course, the factual problem here is, although you have this history of abuse of the mother, we know for a fact in recent times the mother has not abused anyone, she's been in jail.
But the second point is, I think, Justice Kennedy... and I think equally important... is... is the... Justice Scalia's hypothetical is built on the premise that the state can do nothing.
And I think the court of appeals as a matter of law found that to be contrary.
As a matter of Maryland law the state can do something without forfeiting any right under 3-831.
And if that's true, we don't have a true balancing case because all we have is the state saying we're going to resist doing it this way for whatever reason.
I don't know what that reason is.
It's not a matter of we can't do it; we just won't do it.
Because it seems to me the court of appeals is in Maryland law the final decider of Maryland law.
They concluded this was the applicable statute.
And as I said, I think a prosecutor certainly--
Unknown Speaker: What statute is that?
Mr. Burns: --3-831 court's article.
It's cited... it's been reproduced in 6(a) of petitioner Maurice's brief.
Unknown Speaker: And so how precisely is the state supposed to proceed now?
Mr. Burns: Well, I think the state simply can say, we're going to prosecute you; you... we're charging under this.
If the state is concerned that what we have--
Unknown Speaker: But that... but that is just... still avoids Justice Scalia's hypothetical and my concern that we're interested in the welfare of the child.
Mr. Burns: --Exactly, Judge Kennedy... Justice Kennedy.
Unknown Speaker: And so you're saying that there is nothing that can be done for the welfare of the child.
Mr. Burns: I'm not saying that because what I'm saying... and I'd be willing to say that I'm sure at this very moment there is somewhere some prosecutor saying to a defendant that, if you do what I want... in this case, if you comply, if you tell me where the child is, if you produce it, we'll either not prosecute you under this; there's going to be a mitigating factor under this.
That is, all the things that basically you can do with civil contempt you can do with 3-831.
And it has a three-year penalty on it.
So we're not talking about some minor regulatory thing.
Unknown Speaker: Well, let me ask you, while we're talking about prosecutors.
I take it... or, correct me if you disagree... that in a case where the court awards custody to a mother but with a warning that the mother is to cooperate with social service workers, I take it the court could require a waiver of the Fifth Amendment as a condition to remitting the child to the custody of the--
Mr. Burns: My view, Justice Kennedy, is, assuming all the proper forms going through, the answer would be yes.
There wasn't anything in this case.
I think that's certainly another.
Obviously you can't use it in retrospect, but certainly in future cases that's a perfectly reasonable explanation.
You have the mother, you have the lawyer, and you simply make it clear that you can't use the Fifth Amendment for this limited thing, for producing the baby.
So, although I don't know of a case where that's actually happened, I haven't seen any, I see in principle no reason why it isn't a perfectly suitable basis for avoiding all of these problems.
Unknown Speaker: --Oh, but wait a minute on that.
Supposing there is no history like you have here, which is fights between parents and so a mother says she's entitled to custody and they say, well, in order to get custody you've got to waive your Fifth Amendment privilege and she says, why should I waive my Fifth Amendment privilege, I never did any--
Mr. Burns: Well--
Unknown Speaker: --do you just think you could you could routinely require waivers of constitutional--
Mr. Burns: --Justice Stevens--
Unknown Speaker: --rights?
Mr. Burns: --I think the question of whether it would be proper would be looked in a particular case.
If you're just doing it as a matter of routine, I think a mother--
Unknown Speaker: All right.
If you do it on a particular case... supposing you've got a case, maybe a divorce proceeding that seems normal as it starts but later on it gets acrimonious, and then there is a dispute about custody and somewhere along the line the court says, I think the mother should surrender custody by such and such a date.
She refuses to do it.
He orders her, bring the child in, and she refuses.
You don't know the details of it.
Could she claim the Fifth Amendment privilege?
And she had no reason to waive her Fifth Amendment rights before.
Mr. Burns: --But the problem... I don't think... I may have misunderstood your hypothetical, Justice Stevens.
But I don't think there was any... suggested any criminality involved or anything happening to the child.
Unknown Speaker: No, but when she comes in, she... maybe the husband's allegations are rather extreme.
There could be all sorts of variations in the facts.
But does she have a Fifth Amendment privilege just like this--
Mr. Burns: I think only if, again, there is a reasonable prospect of this prosecution.
And, again, I think the state in many cases is going to be sure, despite allegations of husband and wives which are made... that's not the case.
And you do have the example saying limited immunity; you have no rights whatsoever.
Going back to Justice Kennedy's with the waiver, I think it might be a problem in the routine case, but it seems to me in any case where you're taking what I would call a high-risk placement, and certainly you are if there is some prior history of abuse, I see nothing wrong either in law or principle with saying that we're going to condition this custody which, after all, is some risk to the child, on a waiver of exercising your Fifth Amendment privilege in these circumstances.
Unknown Speaker: --Maybe you'd also--
--If you can require that... but only in certain circumstances.
I take it you say you can't require the waiver unless there is some previous element of criminality.
Then it's going to be litigated in every case whether the waiver was any good.
Mr. Burns: No, Mr. Chief Justice.
No, I don't think the matter of waiver would be any good.
The litigation would come if social services said, we're not going to give you the child because you didn't waive.
Then I think the burden would be on the parent to say, well, it was an unreasonable thing.
I don't think that goes to whether the waiver is good or not.
Unknown Speaker: Well, supposing that Mrs. Bouknight here had waived and then the time comes for her to bring her child into court and she says, no, I'm going to claim my Fifth Amendment.
The court says, well, you waived it.
And she says, well, they have no business exacting that requirement of me.
Mr. Burns: I think, Mr. Chief Justice, it's too late then.
I think if she wanted to litigate it, she had to litigate it at the time when you were exacting--
Unknown Speaker: Well, who knows... who knows... that may be what you think but who knows what courts are going to say?
Mr. Burns: --Of course, Mr. Chief Justice, I can't be responsible for what courts might do.
However, the problem here to some extent, I think, is we're working in a vacuum because, as I pointed out, I don't know of any specific case where this has been done although... I'm not saying there will never be any difficulties, but I suspect that every rule of law there is provides--
Unknown Speaker: Mr. Burns, the rule that you're urging upon us is full of these difficulties.
For example, you say that it's no good in this case because you could have done it a different way.
There is this other statute that you say is after all a big deal statute which requires a three-year term.
Now, what if... what if the child is so badly injured that the incrimination she's worried about will get her a jail term much more than three years?
So she says, it is still worth it for me to serve three years.
Are we supposed to weigh in each case whether the other available means that the state has is really going to be effective enough to save the child's life or to achieve whatever other the state is legitimately seeking?
Mr. Burns: --No, Justice Scalia, because I think what you're doing there is you're saying that... exactly what we think is the concern here, is we really think something's happened to the child and we want to prosecute.
Now, obviously, if you want to do that--
Unknown Speaker: I want to save the child.
Mr. Burns: --then you have to collect evidence.
Unknown Speaker: I don't want to... I want to save the child.
Mr. Burns: Well, then I'd--
Unknown Speaker: And you're saying, well, three years... a three-year term ought to be enough to coerce her into producing the child.
And I say maybe not.
Maybe the only thing that will coerce her into producing the child is to say you sit there until you produce him.
Mr. Burns: --Well, of course... well, it hasn't come up in this case, I think... and I don't think this Court has actually ruled on it... is there are limitations, I think, on whether civil contempt can be, for example, turned into a life sentence because then it no longer has the purpose of coercing you to do this, but it's becoming essentially punitive.
To my knowledge, there's no case where someone has been held even three years under civil contempt.
Unknown Speaker: Well, I would think if the state moved to this other procedure, this 3-831, or whatever it is, you would be making the same argument.
Mr. Burns: I wouldn't--
Unknown Speaker: Why not?
Mr. Burns: --Justice White.
Unknown Speaker: Why not?
Mr. Burns: Because I think--
Unknown Speaker: She exercises her Fifth Amendment privilege and the court puts her in jail under civil contempt and they say, well, now, we're going to prosecute you for... for disobeying this order to produce.
And she says, well you can't prosecute me for exercising my Fifth Amendment privilege.
Mr. Burns: --Justice White, you're not prosecuting for exercising that Fifth Amendment privilege.
You're prosecuting for not complying with the order which requires you to keep the child from being... neglectful to submit to this supervision.
It's like any other criminal case.
A defendant certainly can come forth and say something, but he doesn't have to, and the fact that he doesn't say anything has nothing to do with the Fifth Amendment.
Unknown Speaker: Well, what the state is going to prosecute her for is not producing the child.
Mr. Burns: That's true, Justice White.
Unknown Speaker: Which is a... you say is a testimonial act.
Mr. Burns: No.
What we're saying... we're saying is she that she has no right not to comply with this order as a matter of criminal law.
What we're saying is you can't use the civil proceeding contempt to force her to incriminate herself for some other crime.
The 3-831 prosecution--
Unknown Speaker: I know, but you're not... I didn't know the state could penalize somebody for exercising a--
Mr. Burns: --They're not penalizing them for that, Justice White.
All our suggestion is... totally in those circumstances is you're penalizing them not for exercising any right and you're not trying to necessarily collect evidence for some other crime.
All you're saying is this was a valid order--
Unknown Speaker: --Well, if you're right in this case, I would suggest that if your client is prosecuted under this other statute, you ought to think twice about not making this argument.
Mr. Burns: --Well, Justice White, lots of arguments are made, but I think--
Unknown Speaker: And vice versa.
Mr. Burns: --In any event, I think is... there is nothing to suggest at this stage of the proceedings, at least, that this isn't a viable means of prosecuting and accomplishing precisely the same factor.
Rylander was cited by the state.
Rylander concerned a prior enforcement proceeding, a subsequent contempt proceeding.
Here the prior proceeding that we would be talking about is when the child is given to the mother.
It's difficult for me to understand what it is she'd be contesting or talking about in the Fifth Amendment at that time.
Unknown Speaker: And how about the Byers-type exception to the Fifth Amendment requirement?
Mr. Burns: I think the problem with the Byers is, again, the specific order.
Again, we're not attacking the statute.
As I think I've suggested many times here today, there are certainly many cases where the content would be perfectly proper, and in the ordinary course of events, there would be no problem.
But here we have a judge acting with all these facts before him knowing precisely that we're after one individual and knowing at the same time, as the state concedes, that there is a real significant problem with the threat of criminal prosecution.
Unknown Speaker: May I just clarify one thing, Mr. Burns.
Is your attack on the order or on the contempt?
Mr. Burns: Order or the... the order... if I may say one thing, I would refer the Court to 72 and 74... pages 74 of the Joint Appendix, where the judge talks about, in reference to one of your earlier questions... that he requires there be verification of whatever the petitioner says.
Unknown Speaker: Is that... again, are you saying the order violated the Fifth Amendment or the order holding her in contempt violated the Fifth Amendment?
Mr. Burns: Which... I don't--
Unknown Speaker: The order to produce the child.
Mr. Burns: --Oh, I'm saying the contempt.
I misunderstood you.
Unknown Speaker: So you... do you concede the order to produce the child was valid?
Mr. Burns: I think you can... I don't have any problems with that.
Unknown Speaker: Oh, okay.
Mr. Burns: No, that's purely contempt.
But I did want to refer back to 72 and 74(a) in reference to one of your earlier questions to the other side... is that where the judge makes it clear not only do I want someone to say I can't do it; it has to be verified and I have to accept it.
So the judge is making perfectly clear in the hypothetical where you can't produce it... just saying or telling your lawyer to say, "I can't produce it", is simply not going to be enough.
Unknown Speaker: Thank you, Mr. Burns.
Mr. Tyler, you have three minutes remaining.
Rebuttal of Ralph S. Tyler, III
Mr. Tyler: Without any doubt, the interests in this case are the most fundamental and important interests that the state has to protect and that we as a people have to protect, and none of the arguments advanced today or in the brief or in the opinion of the Court of Appeals of Maryland meet either half of this case.
With respect to the testimonial issue, on page 10 of Respondent's brief they say this case need not be decided on the narrow ground of whether the effect of producing the child is testimonial.
Were that proposition to be accepted, it would largely reverse a vast body of this Court's decisions, and it should be rejected.
If it is not testimonial, she has no Fifth Amendment privilege.
I think they've largely conceded that it's not testimonial.
The order... judgment below should be reversed on that ground alone.
Unknown Speaker: Mr. Tyler, do you agree... I thought the question presented was whether the order directing a parent to produce a child and so forth violated the Fifth Amendment.
And he's just said to me that that order is conceded to be valid.
The only issue is the contempt.
Is that your understanding of the case?
Mr. Tyler: Well, I think the sequence, your Honor... really the one followed the other quite quickly.
Unknown Speaker: Yeah, I know, but they are legally distinct.
Mr. Tyler: --I'm not disputing that.
The order to produce was given by the judge.
That led to some information being provided.
She was held in jail overnight.
Then the following day the information is verified as false.
He asks her, do you want to produce the child?
She says, no.
Judge Mitchell then cites her in contempt and the contempt order is entered.
Unknown Speaker: So you agree the issue is the validity of the contempt order, not the order to produce.
Mr. Tyler: --Yes, and that the... the order... the contempt order plainly is an order to enforce the order to produce.
And I think that it is... it is incorrect to look at this case only from the point of view of well, that specific order is directed at one person as to whom there is some risk of incrimination.
The fact is that order grows out of a plainly neutral state regulatory system which exists for an entirely legitimate, non-prosecutorial purpose, namely, child protection, and no answer that has been given today can meet the problem of where will we be if the state cannot require a parent to produce her child in court.
The idea that criminal--
Unknown Speaker: You're saying that the order to produce is the... which is not contested, is the equivalent of the income tax statute, and the contempt for failure to obey it is the equivalent of the prosecution for not filing--
Mr. Tyler: --Right.
Unknown Speaker: --as the statute required?
Mr. Tyler: I would not concede that it's prosecution, Your Honor.
Unknown Speaker: Well,--
Mr. Tyler: It is... it is enforcement, and it is enforcement in this case, as it is really in any civil case.
I mean, the judicial arsenal is limited.
What's at stake in this case is will the most effective remedy that's been identified in literally centuries of cases be taken away from the only court that exists in our system to protect children.
Chief Justice Rehnquist: Thank you, Mr. Tyler.
The case is submitted.
Argument of Speaker
Mr. Speaker: The opinion of the Court in No. 88-1182, Baltimore City Department of Social Services versus Bouknight will be announced by Justice O’Connor.
Argument of Justice O' Connor
Mr. O'Connor: These cases come to this Court on writ of certiorari to the Court of Appeals of Maryland.
They concern the State’s efforts to protect the petitioner, Maurice M., a young child with a sad history of abuse and neglect, by seeking to have the respondent, Maurice’s mother, produce the child.
The respondent, entrusted with Maurice’s care subject to the conditions of a court order, asserted that the Fifth Amendment entitled her to resist the production order.
The Court of Appeals of Maryland agreed.
In the opinion filed today, we hold that respondent may not invoke the Fifth Amendment’s privilege against self-incrimination to resist producing Maurice.
The State demands production as part of a generally applicable regulatory regime constructed to affect the State’s public purposes which are unrelated to criminal law enforcement.
The respondent, by agreeing to care for the child pursuant to the order’s conditions, has accepted the corresponding obligation to permit the State access to the child.
We leave open the possibility that the Fifth Amendment may limit the State’s use and subsequent criminal proceedings, if any, of testimonial aspects of any act of production.
The judgment of the Court of Appeals of Maryland is reversed and the cases are remanded to that court for further proceedings not inconsistent with our opinion.
Justice Marshall has filed a dissenting opinion in which Justice Brennan has joined.