Idaho_v_Estrada
Fifth Amendment rights against Psych Exams AND Ineffective Counsel
This case regards pre-sentencing evals but has lots of useful info. And conveniently enough it also regards ineffective assistance of counsel regarding not being informed of your 5th. Amendment rights by your attorney.
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The Fifth Amendment provides, in relevant part, that no person “shall
be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. This right against self-incrimination “not only permits a
person to refuse to testify against himself at a criminal trial in which he is
the defendant, but also ‘privileges him not to answer official questions put
to him in any other proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.’ ” Minnesota
v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefowitz v. Turley, 414 U.S. 70, 77
(1973)). The “sole concern” of the Fifth Amendment’s right to silence is
“the danger to a witness forced to give testimony leading to the infliction of
‘penalties affixed to the criminal acts. . . .’ ” Ullman v. United States,
350 U.S. 422, 438-39 7 (1956) (quoting Boyd v. United States, 116 U.S. 616, 634
(1886)). When a criminal defendant exercises his privilege against
self-incrimination, such silence may not be used as “evidence of guilt.”
Griffin v. California, 380 U.S. 609, 615 (1965).
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The United States Supreme Court established the standard for a claim of ineffective
assistance of counsel in Strickland v. Washington, supra. Strickland sets
forth two components necessary to a criminal defendant’s claim of ineffective
assistance of counsel: First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
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The Sixth Amendment guarantees a criminal defendant the right to counsel during all “critical stages” of the adversarial proceedings against him. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149, 1156 (1967); State v. Ruth, 102 Idaho 638, 637 P.2d 415 (1981). A defendant’s right to effective assistance of counsel “extends to all critical stages of the prosecution where his substantial rights may be affected, and sentencing is one such stage.” Retamoza v. State, 125 Idaho 792,
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The availability of the Fifth Amendment privilege against self-incrimination “does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” Application of Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527, 558 (1967) (noting the privilege may be claimed in a civil or administrative proceeding if the statement is or may be inculpatory). This Court’s decisions clearly indicate that both at the point of sentencing and earlier, for purposes of a psychological evaluation, a defendant’s Fifth Amendment privilege against self-incrimination applies.2 See State v. Lankford, 116 Idaho 860, 871, 781 P.2d 197, 208 (1989) (“The fifth amendment privilege against self-incrimination and the sixth amendment right to counsel apply to custodial psychiatric exams conducted prior to sentencing as well as those conducted prior to trial.”); State v. Wilkins, 125 Idaho 215, 217-18, 868 P.2d 1231, 1233-34 (1994) (holding that the Fifth Amendment privilege protects a defendant against compelled testimony at the sentencing hearing in a non-capital case); State v. Odiaga, 125 Idaho 384, 387, 871 P.2d 801, 804 (1994) (“Following Idaho’s repeal of the insanity defense, no statutory scheme remains through which a psychological evaluation can be compelled without threatening the rights guaranteed under both [the Fifth Amendment to the United States Constitution and article I, section 13, of the Idaho Constitution].”); State v. Wood, 132 Idaho 88, 100, 967 P.2d 702, 714 (1998) (noting that, “[i]f a psychiatrist or psychologist had been appointed by the court for purposes of a pre-sentence investigation, counsel for Wood would have had the opportunity to advise his client of the possible uses of the information and of the privilege against self-incrimination.”)
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The district court found that under Strickland, Estrada’s attorney was
deficient in failing to inform Estrada of his right to assert the privilege
against self-incrimination. The judge’s findings on this point are not
clearly erroneous and are affirmed by this Court. Strickland sets an “objective
standard of reasonableness” for judging whether errors in an attorney’s
performance are serious enough to render that performance defective. 466 U.S at
688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693-94. See also State v. Hairston, 133
Idaho 496, 511, 988 P.2d 1170, 1185 (1999). “There is ‘a strong presumption
that counsel’s performance falls within the wide range of professional
assistance.’ ” Hairston, 133 Idaho at 511, 988 P.2d at 1185 (citing Aragon
v. State 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988)). Under Strickland, “[t]he
proper measure of attorney performance remains simply reasonableness under
prevailing professional norms.” 466 U.S at 688, 104 S.Ct. at 2064, 80 L.Ed.2d
at 693-94. Given the state of the law established by Estelle, Wilkins, Odiaga,
Wood, and Lankford, this Court cannot find that Estrada’s attorney acted
reasonably under prevailing standards of professional norms. See Estelle, 451
U.S. at 470, 101 S.Ct. at 1877, 68 L.Ed.2d at 373-74; Wilkins, 125 Idaho at
217-1
Estrada also alleges ineffective assistance of counsel by claiming his attorney was deficient in failing to file a motion to suppress the psychosexual evaluation. Given our conclusion that Estrada’s attorney was deficient in failing to advise him of his Fifth Amendment right at the time of participation in the evaluation, we need not address Estrada’s second basis for alleging deficient performance.
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IV. CONCLUSION
Estrada has met his burden of showing ineffective assistance of counsel in his attorney’s failure to advise him of his Fifth Amendment right against self-incrimination and in the resulting prejudice through the sentencing judge’s reliance on the psychosexual evaluation. This case is reversed and remanded to the district court for re-sentencing. Chief Justice SCHROEDER and Justices EISMANN, BURDICK and JONES concur.