5th Amendment

The short answer is Yes. According to both local and federal courts, what you say during a butt-dial phone call can potentially be used against you in court. In Texas, a hearsay exception makes those overheard statements admissible. In the federal system, these calls are viewed as having no reasonable expectation of privacy—since you did not take simple precautions to avoid this kind of situation, you cannot expect someone on the receiving end of the call not to repeat what they heard.

Butt-Dials in Texas: Can Words Overheard During an Unintended Phone Call be Used Against Me?

Under Texas law, statements made during an accidental butt-dial are likely admissible and the speaker likely has no reasonable expectation of privacy in those statements. Typically, repeating something in court that you heard someone else say outside of court is not allowed—it is referred to as hearsay and is considered inadmissible in a court of law. But, as with everything, there are hearsay exceptions that, in certain circumstances, allow someone to testify about something they heard someone else say. So, it should not be too surprising that a recent case found that butt-dials fall into one of the many hearsay exceptions.

Templeton v. State involved a felony assault family violence case in which the victim’s father received a butt-dial call from the victim and overheard defendant Templeton make incriminating statements about the assault, which the father then repeated in court. The Templeton court likened butt-dial statements to the requirements of Texas Rules of Evidence 801(e)(2)(A), commonly known as the admission of a party-opponent. Under this rule, a statement is not considered hearsay if it is a statement made by the person whom it is then offered against. In Templeton’s case, that meant that the statements he made on the butt-dial, which were overheard and then repeated by the victim’s father, could be used against him in court where he was the defendant. These statements do not have to be against the interests of the speaker when they are made in order for them to be admissible, rather, the requirement is that the statements be offered as evidence against the speaker/defendant.

Templeton sets the bar rather low in terms of the work it takes to get these kinds of phone calls in. Essentially, any Texas defendant who accidentally butt-dials someone faces the possibility that anything they say—whether they know someone is listening or not, or whether it is against their interest or not—can be repeated in court so long as it is used as evidence against them. The phrase “be careful what you say” could not ring more true. While a majority of butt-dials result in the overhearing of harmless conversations (your comments about who you saw at Trader Joe’s and the gossip you exchange with your friends are not likely to be subjects of court cases), it is important to know that anything you say on those calls has the potential to be repeated in court.

Butt Dials in the Federal System: Do I Have a Reasonable Expectation of Privacy?

Somewhat unsurprisingly, the sentiment that what someone said during a butt-dial can be used against them extends beyond just Texas and into the Federal system as well. In another recent case, Huff v. Spaw, the Sixth Circuit Appeals Court addressed butt-dials in two contexts: the traditional context in which a call is accidentally made and someone on the other end overhears and perhaps even documents or records the calls, and instances in which a butt-dial is made and the listener records the conversation the caller has with a third-party while in a hotel room.

The judge in Huff determined that in the first instance, there is no privacy claim. Essentially, according to the federal courts, it is the duty of every cell phone owner to make sure that their phones are secure. The court points out the commonality of cell phones and their use. There is no expectation of privacy (and therefore no claim) when someone fails to take simple measures to secure their phone and accidentally shares their activities or statements while using an everyday cell phone. As far as precautions go, the biggest one is to lock your phone. From there, there are a number of apps available to help prevent butt-dialing.

As to the second issue, the judge determined that there was a reasonable expectation of privacy, so that part of the case was remanded to the lower court for reconsideration. The key difference between these two issues was the fact that Bertha Huff, with whom James Huff spoke to in her hotel room. Bertha’s part of the conversation, in the judge’s opinion, was protected by a reasonable expectation of privacy because she did not make the butt-dial—as far as she was concerned, all she was doing was speaking to her husband in the comfort of her hotel room.

What Can You do to Protect Your Privacy?

No matter what type of phone you have, the first line of defense in preventing butt-dials and protecting your privacy is to lock your phone. From there, there are a number of other settings you can change that make butt-dialing less likely.

For iPhone users, adding a passcode (or touch/face I.D.) provides an additional layer of protection for users. If you are prone to butt-dialing, you can take it a step further, allowing your phone to auto-lock quickly (Settings --> Display & Brightness --> Auto-Lock). For iPhone users with models that still have the home button, it might be smart to also disable tap-to-wake (Settings --> Accessibility --> Touch --> Tap to Wake).

There are precautions for Android users too! Begin by setting a passcode. To turn off the tap to wake feature on these phones, go to Settings --> Display --> Lock Screen Display --> Double-Tap to Check Phone. To change the time it takes for these phones to auto-lock, go to Settings --> Security --> gear lock icon next to Screen Lock.

If you really want to go above and beyond, there are some apps available for certain phone users to download. If you take all these precautions and still end up in a situation where what you said on a butt-dial is being used against you, consult an attorney to discuss the best plan of action.

Is Use of Compelled Testimony of a Defendant in Trial a Violation of the Fifth Amendment Right Against Self Incrimination?

The Second Circuit Court of Appeals recently handed down an opinion concerning the use of compelled testimony in an American trial. In Allen and Conti, the Court was asked to determine whether previous compelled testimony by a foreign government, which was later used against the defendant in a criminal prosecution in the United States, violated the Fifth Amendment.

United States v. Allen, 2017 U.S. App. LEXIS 12942 (2d Cir. July 19, 2017)

The Facts—District Court Found that a Witness’s Review of the Defendant’s Compelled Testimony Did Not Taint the Evidence

In 2013, both U.K. and U.S. law enforcement agencies began investigating wire fraud and bank fraud at the London office of Coöperative Centrale Raiffeisen-Boerenleenbank B.A. (“Rabobank”). Anthony Conti and Anthony Allen, previous employees of Rabobank in London as well as U.K. citizens and residents, were compelled to provide testimony during interviews with the U.K. agency, the Financial Conduct Authority (“FCA”). Although Conti and Allen were provided limited immunity from criminal prosecution, pursuant to U.K. law, refusing to testify would have resulted in imprisonment.

The FCA pursued Conti and Allen’s coworker, Robson; however, without reason, the FCA dropped its case against Robson. Soon thereafter, the Fraud Section of the United States Department of Justice pursued criminal prosecution of Robson. Soon after Robson pled guilty, he became an integral cooperator of the investigation and a grand jury indicted Allen and Conti.

During the 2015 trial, the government used the prior compelled testimony that Conti and Allen had given in the U.K. against them in the American trial. This resulted in convictions for both Conti and Allen with a year-and-a-day’s imprisonment and two years’ imprisonment respectively.

Pursuant to Kastigar v. United States, 406 U.S. 441 (1972), the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against self-incrimination, by providing the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony.

During the FCA’s investigation of Robson, the FCA permitted Robson to review and take notes of Allen and Conti’s compelled testimony. Robson’s review of such testimony impacted his personal testimony, which was the sole source of Agent Weeks’ testimony. The District Court concluded looking to Second Circuit precedent, that Robson’s review of the defendants’ compelled testimony did not taint the evidence he later provided.

The Court of Appeals Reversed the District Court’s Decision—Holding the Prosecution Violated the Fifth Amendment Right When it Used a Tainted Witness Against the Defendants

On appeal, the defendant’s argued that the Government violated their Fifth Amendment rights when it used their own compelled testimony against them in the form of tainted evidence by Robson. The defendants specifically alleged that the Government applied the wrong legal standard in analyzing whether the evidence was tainted by Robson’s review of their compelled testimony.

Every individual accused in an American criminal prosecution has a personal trial right to be free from self-incrimination as guaranteed by the Fifth Amendment. Use of compelled testimony against the accused during trial is a violation of this right, including when a foreign government, pursuant to its own law, compels such testimony. The Court exemplified that precedent shows that inculpatory statements obtained overseas must be made voluntarily. The Court explains that even if the testimony was lawfully compelled pursuant to the laws of a foreign power, the Fifth Amendment flatly prohibits the use of compelled testimony to secure a conviction, as it would be a violation of the right against self-incrimination.

Further, when the government uses a witness who has been exposed to the compelled testimony of a defendant, it is required under Kastigar to prove, at a minimum, that this review did not alter or affect the evidence used by the government. Here, the prosecution used evidence of the defendant’s compelled testimony through a tainted witness who acted as an integral part of the prosecution’s investigation.

Here, the court found that law enforcement officers in the U.K. undoubtedly compelled the defendant’s testimony. As a result, the court held that the Fifth Amendment prohibited the government from using the defendants’ compelled testimony—in any way—against them at trial in the United States.

DWI Caselaw Update | Fort Worth Criminal Defense Lawyers

The Fifth Amendment protection against double jeopardy is often viewed as a guarantee against having to stand trial for an offense if an individual has already been found not guilty in a previous trial. It also applies to situations where a defendant is charged with more than one offense: Is it double jeopardy if a defendant receives multiple punishments for the same transaction for multiple offenses?

Yousef Benson was convicted of two offenses as a result of a 2010 traffic accident that seriously injured another individual--intoxication assault and felony DWI.  The offense of intoxication assault occurs when a person "by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another."  Felony DWI occurs when a person "is intoxicated while operating a motor vehicle in a public place" and the person has been previously been convicted of two DWI offenses.

The appellant argued that the two offenses should be considered the same offense, which would prevent the imposition of multiple punishments. The state argued that the offenses were separate and that multiple punishment was allowed. The principle point of contention was whether the previous conviction requirement for felony DWI is an element of the offense or is a punishment enhancement.

The Court of Criminal Appeals performed an "elements" analysis. The elements analysis looks at the specific elements of each crime. If each crime has the same elements, then a court presumes that the offenses are the same for purposes of double jeopardy. Conversely, if two offenses have different elements, the presumption is that the two offenses are separate. In either case, the presumption can be rebutted by showing that the legislature clearly intended the opposite result.

In Benson, the CCA focused on felony DWI's requirement of two previous convictions. In some cases, such requirements are viewed as creating a separate offense; in other cases, they are considered an enhancement of the level or the punishment for the offense. As Benson acknowledged, the CCA had already held in earlier cases that the required prior convictions for felony DWI constitute an element of the offense, calling them "specific attendant circumstances" that help define the offense. In other words, intoxication assault and felony DWI are presumed to be separate offenses, and a defendant can receive a sentence for each offense.

The CCA then turned to the question of whether there was evidence to rebut the presumption: Did the legislature intend for the two offenses to be treated as one? The court acknowledged that the two offenses are in the same chapter of the criminal code, a factor that supports the same-offense position. But the court looked at the language of the statute and concluded that if the legislature had intended the two offenses to be the same, they would have structured the statutory language differently.

The court also looked at the name of the offenses, pointing out that both offenses have some form of the word "intoxicate" in their names, although used as a modifier in each name rather than as a noun. The court concluded that this factor slightly favored the same-offense position.

The court noted that the two offenses have the same punishment ranges. Although this factor can favor either position, the court concluded that it slightly favored treating the same-offense view.

The court looked at the focus of the offenses and found intoxication assault to be a result-oriented offense (causing serious bodily injury) and felony DWI to be a conduct-oriented (driving while intoxicated) or circumstances-oriented (two prior convictions) offense. Unlike intoxication assault, felony DWI does not even require a victim. This analysis favored treating the offenses as separate.

Finally, the court considered the history of the two offenses and concluded that the various revisions of the criminal code supported the position that the two offenses are separate.

In its final analysis, the court recognized some factors supported Benson's argument (same offense). However, the court considered the factors supporting the state's position (separate offenses) as "more substantial." In the court's view, the evidence did not support the view that the legislature intended one punishment. Therefore, separate punishment for each offense was not a violation of Benson's right to protection from double jeopardy.

You have the right to remain silent…as long as you’re in custody and have been mirandized.

In Salinas v. State, the Texas Court of Criminal Appeals addressed an issue about which it and the Supreme Court have remained silent while many other courts across the nation are split; whether the state may comment on an accused's silence prior to his arrest and Miranda warnings.

In Salinas, the appellant was convicted for murder and sentenced to 20 years in the penitentiary after the state introduced evidence during guilt/innocence about his refusal to answer a question about the possibility of the shotgun shells found on scene matching the shotgun found at his residence.  Appellant refused to answer the question, choosing to remain silent, at a time prior to his arrest and before the police had issued any Miranda warnings.  The defense argued the state was solely using the testimony regarding appellant’s silence as evidence of his guilt in violation of the 5th Amendment.

The Fourteenth Court of Appeals (Houston) affirmed the trial court’s decision to allow the questioning, focusing on the difference between post-arrest, post-Miranda silence and pre-arrest, pre-Miranda silence.  The court of appeals noted that the appellant voluntarily answered questions by police for over an hour before refusing to answer the ballistics question.  Citing Justice Stevens concurring opinion in Jenkins v. Anderson, 447 U.S. 231 (1980) the CCA held:

the Fifth Amendment right against compulsory self-incrimination is "irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak."

The CCA spent little time in this opinion to proclaim loudly it affirms the Fourteenth Court’s holding:

The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination.  In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.

Now, we will continue waiting for SCOTUS to speak up on the issue hoping they don’t continue exercising their right to remain silent…

UPDATE:  US Supreme Court opinion - Salinas Supreme Court Opinion

 - (Tex. Crim. App.) Feb. 8, 2012

Cecil Edward Alford was charged with evading arrest and detention.  While being transported to jail, Officers noticed that Mr. Alford was squirming around in the back seat.  Once at the jail, officers got Alford out of the car and searched the back seat.  As was procedure, they had searched the back seat of the squad car before their shift started to confirm that there were no items in the back seat.  After searching the back seat of the squad car following Mr. Alford’s transport to jail, officers located a clear plastic bag with pills inside and, directly under the bag, a computer flash drive (“thumb” drive).  As the jailers were booking Alford in, one of the officers took the thumb drive and held it up to Mr. Alford asking what it was.  The officer then asked, “Is it yours?” Alford claimed that it was.  At the time the jailer asked the question, Alford had not been advised of his Miranda rights.

The legal question arising from this situation is whether Alford’s admission that he owned the flash drive could be used against him at his trial.

The Court of Criminal Appeals first analyzed this case by addressing custodial interrogation and the “booking-question exception” to Miranda.  The Court recognized that questions “normally attendant to arrest and custody” or “routine booking questions” are exempt from Miranda. See South Dakota v. Neville, 459 U.S. 553 (1983); Pennsylvania v. Muniz, 496 U.S. 582 (1990).  The CCA noted that Mr. Alford’s case hinged on whether the question that the officer asked him that night was reasonably related to administrative concerns or if it was a question designed to elicit incriminatory admissions.

The defense presented case law supporting the contention that a question does not necessarily fall within the booking-question exception to Miranda simply because the question was asked during the booking process.  Specifically, the defense cited a footnote at the end of the Supreme Court’s opinion in Muniz that said, “recognizing a ‘booking exception’ to [Miranda] does not mean, of course, that any question asked during the booking process falls within that exception.  Without obtaining a waiver of the suspect’s [Miranda] rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” Id at 602, n. 14 (Brennan, J., plurality op.)

The CCA conceded that case law actually supported both the State and the appellant in this case.  Ultimately though, the Court held that the booking-question exception applies when the question reasonably relates to a legitimate administrative concern regardless of whether officer should have known that it might elicit an incriminatory admission.  The Court held that the Officer’s question in Alford’s case had the legitimate interest of identification and storage of an inmate’s property and that the questions regarding the thumb drive did fall within the booking exception to Miranda.

Essentially, the court decided that the relationship between the officer and Alford was not the determining factor.  Even though the Officer that asked Alford the questions was primarily responsible for the investigation, the Court still said that his question at the jail was just a booking question.  To me, this case does not provide any clarity to the booking-question exception to Miranda.  In any case, once a suspect is arrested, an officer could claim his questions are for booking purposes only, even when those questions are eliciting incriminatory admissions – and even if those questions are being asked while still in the field or at the scene.

This case just serves to reinforce what I’ve always advised folks – DO NOT SAY ANYTHING TO THE POLICE.  Of course, there are times when talking with a police officer cannot hurt, but if you are under arrest, DO NOT SAY ANYTHING, DO NOT EVEN NOD YOUR HEAD, until you have been provided an attorney.  If you must say something, say this:  "I request an attorney and will not answer any questions until I have been provided an attorney."