The Fifth Amendment: You Have the Right to Remain Silent, but Should You?

*Hannah Krehely

I. Introduction

In August 2022, former President Donald Trump took full advantage of his Fifth Amendment right to remain silent in a deposition with the New York State Attorney General.[1] The deposition was part of a civil investigation into whether Trump and the Trump Organization fraudulently misrepresented the value of its properties to lenders.[2] The investigation has spanned three years, but Trump’s deposition may prove to be a pivotal moment in the case to come. Trump reportedly invoked the Fifth Amendment over four hundred times during his deposition, refusing to answer any of the Attorney General’s questions to avoid the risk of self-incrimination.[3]

The Fifth Amendment provides that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.”[4] However, the right to remain silent does not necessarily guarantee that your silence will not be used against you in a future court proceeding.[5] By invoking the Fifth Amendment in his August deposition, Trump may face an adverse inference instruction if the case against him ever goes to trial.[6] An adverse interference instruction is known for its applicability in discovery matters where a party has failed to preserve electronic evidence in “anticipation or conduct of litigation.”[7] If such a failure occurs, the court may instruct the jury to “presume that the lost information was unfavorable to the party.”[8]

II. The Complicated History of the Fifth Amendment

While the U.S. Constitution does not explicitly provide the right to remain silent, courts have long held that the Fifth Amendment provides this right to criminal defendants.[9] In more recent years, the Supreme Court has guaranteed criminal defendants the right to remain silent “unless [they] choose[] to speak in the unfettered exercise of [their] own will.”[10] The Court notably expanded on this idea in Miranda v. Arizona, holding that the “knowing and intelligent waiver” of one’s right against self-incrimination cannot be assumed “on a silent record.”[11] The Supreme Court has also held that civil defendants are entitled to this right, stating that the privilege is “not ordinarily dependent upon the nature of the proceeding.”[12]

III. The No-Adverse-Inference Instruction

A defendant may be entitled to remain silent according to the Fifth Amendment, but this means little if a jury is allowed to use that silence as evidence of the defendant’s guilt.[13] Criminal defendants often move for a “no-adverse-inference” instruction when they choose not to testify at trial.[14] This instruction prohibits a jury from drawing an adverse inference from the defendant’s decision not to testify.[15] Unfortunately for criminal and civil defendants, there is no guarantee that a defendant’s decision to remain silent will come without consequence.[16] For example, a defendant’s decision to “plead the Fifth” could be brought to a jury later in the case or used in sentencing.[17] Additionally, invoking the Fifth Amendment may also be used to impeach the defendant, even though it is not considered determinative of guilt.[18] Recently, the Supreme Court declined to hold that a criminal defendant was entitled to a jury instruction that prohibited the jury from using the invocation of the defendant’s Fifth Amendment right during the penalty phase of his trial.[19] Although Justice Breyer dissented, stating that the Court was expressly going against the general rules established by prior cases,[20] the majority felt that it was “not uncommon for a constitutional rule to apply somewhat differently at the penalty phase than it does at the guilt phase.”[21]

IV. Adverse Consequences in Civil Cases

A. Implications for All Defendants

While the water seems muddied in criminal cases, civil defendants face even tougher odds when exercising their Fifth Amendment rights, as they are more likely to face an adverse inference jury instruction. In Baxter v. Palmigiano, the Supreme Court recognized “the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”[22] A different treatment of the Fifth Amendment may be warranted in civil cases where the stakes are not as high as in criminal cases, as a civil defendant does not face the risk of prison or death.[23]

However, in a civil case, the plaintiff is not motivated by the desire to convict the defendant. Instead, a settlement may be considered a favorable ending.[24] Because of this, courts have been willing to allow adverse inferences when a defendant invokes the Fifth Amendment so long as some probative evidence otherwise exists and outweighs the danger of prejudice or misleading the jury.[25] A lack of federal guidance on this issue means that lower courts are left to decide the weight assigned to a defendant’s decision to remain silent,[26] resulting in variations in the strength of the adverse inference instruction, as well as a general expansion of its use.[27]

B. Implications for Former President Trump

Through Trump’s exercise of his privilege against self-incrimination in his August deposition, he likely saved himself from the risk of self-incrimination. This risk is especially heightened for Trump as he faces a criminal investigation into similar matters.[28] However, if the civil investigation against Trump reaches the courtroom, the trial court will have the discretion to weigh the evidence against him and the significance of his silence.[29] If found to be significant enough, the prosecutor may have the opportunity to instruct the jury to infer that Trump’s silence was intended to hide information that was “unfavorable” to Trump and his case.[30] The “weight” given to the adverse inference instruction will be left to the court to decide.[31]

V. Conclusion

In both civil and criminal cases, defendants are entitled to exercise their Fifth Amendment right to remain silent to avoid self-incrimination.[32] However, in civil cases especially, courts have modified this right by allowing a jury to infer that the defendant chose to remain silent rather than provide a self-incriminating answer.[33] Trump must contend with the possibility of receiving an adverse inference instruction and prepare for its repercussions as the case against him continues through the New York legal system.

*Hannah Krehely is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for the Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, a Legal Writing Fellow, a member of the National Moot Court Team, a research assistant for Professor Robert Lande, and a teaching assistant for Professor Jaros’s ILS/Criminal Law class. Prior to law school, Hannah spent two years working as a Senior Judiciary Clerk in the Anne Arundel County Circuit Court. In summer 2022, Hannah worked as a judicial intern for the Honorable Judge Laura S. Ripken on the Maryland Court of Special Appeals.

[1] Jonah Bromwich et al., Trump Invokes Fifth Amendment, Attacking Legal System as Troubles Mount, N.Y. Times (Aug. 10, 2022), https://www.nytimes.com/2022/08/10/nyregion/trump-james-deposition-fifth-amendment.html [hereinafter Trump Invokes Fifth Amendment].

[2] Jonah Bromwich et al., Hyperbole or Fraud? The Question at the Heart of Trump Investigation, N.Y. Times (Jan. 19, 2022), https://www.nytimes.com/2022/01/19/nyregion/trump-investigation-letitia-james.html.

[3] Trump Invokes Fifth Amendment, supra note 1.

[4] U.S. Const. amend. V.

[5] See Baxter v. Palmigiano, 425 U.S. 308, 318–19 (1976).

[6] See 6 Moore’s Federal Practice – Civil § 26.51 (2022).

[7] Fed. R. Civ. P. 37 (e).

[8] Id.

[9] See, e.g., Ullmann v. United States, 350 U.S. 422, 428 (1956).

[10] Malloy v. Hogan, 378 U.S. 1, 8 (1964).

[11] Miranda v. Arizona, 384 U.S. 436, 498–99 (1966).

[12] McCarthy v. Arndstein, 266 U.S. 34, 40 (1924).

[13] Cameron Oakley, You Might Have the Right to Remain Silent: An Erosion of the Fifth Amendment with the Use of Pre-Arrest Silence, 49 Creighton L. Rev. 589, 622 (2016).

[14] See White v. Woodall, 572 U.S. 415, 418 (2014).

[15] See id.

[16] See id. at 420–21.

[17] See id.; see also State v. Carr, 314 Kan. 615, 688–89 (2022) (“Whether the Fifth Amendment to the United States Constitution compels a district court to provide a requested no-adverse-inference instruction during the penalty phase of a capital trial remains an open question that the United States Supreme Court has yet to resolve.”).

[18] David S. Romantz, “You Have the Right to Remain Silent”: A Case for the Use of Silence as Substantive Proof of the Criminal Defendant’s Guilt, 38 Ind. L. Rev. 1, 23 (2005).

[19] White, 572 U.S. at 427.

[20] Id. at 428 (2014) (Breyer, J., dissenting)

[21] Id. at 421.

[22] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

[23] Id. at 318–19.

[24] Id.

[25] Fed. R. Evid. 403.

[26] Dennis J. Bartlett, Adverse Inferences Based on Non-Party Invocations: The Real Magic Trick in Fifth Amendment Civil Cases, 60 Notre Dame L. Rev., 370, 379 (1985).

[27] Id.

[28] Jonah Bromwich, Manhattan D.A. Leaves Office With One Big Case Up in the Air, N.Y. Times (Dec. 30, 2021), https://www.nytimes.com/2021/12/30/nyregion/cy-vance-trump-investigation.html.

[29] See Brink’s, Inc. v. New York, 717 F.2d 700, 710 (2d Cir. 1983).

[30] See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

[31] Bartlett, supra note 26.

[32] McCarthy v. Arndstein, 266 U.S. 34, 40 (1924).

[33] See Baxter, 425 U.S. at 318.

Not Different, Not the Same: International Humanitarian Law’s Problem with Cyberattacks

*Anastasia Couch

I. Introduction

On the 175th day of war, the Ukrainian company “Energoatom” reported that Russian hackers launched a three-hour attack on its website.[1] Though the initial attack did not cause significant impact, the attempted assault raised a significant concern because Energoatom is Ukraine’s state nuclear power company.[2] The attack was not directly attributed to the Russian government but to Russia’s “popular cyberarmy” group, which, through its Telegram channel, prompted its followers to attack Energoatom.[3] The attack was the most powerful cyber operation directed at the website since the start of the Russian invasion of Ukraine.[4] As “the first major conflict involving large-scale cyber operations,” Ukraine is the testing site for how modern-era cyber warfare could look.[5] Cyberattacks define the ongoing Russian invasion,[6] and each instance impacts the international community’s ability to address them.[7]

II. Distinguishing between Cyber and Kinetic Operations

Kinetic operations are the “conventional” means of warfare, defined by the manifestation of physical force within the physical realm.[8] In contrast, cyber operations are defined by the origin point of their target in cyberspace; however, the effects can ripple into the corporeal world.[9] Cyberattacks are often executed alongside conventional methods to secure the same or similar goals.[10] For example, on March 1,2022, a Russian missile struck a Kyiv TV tower.[11] The same day, Kyiv-based media companies faced destructive attacks and data exfiltration through Russian-based cyberattacks.[12]

III. International Humanitarian Law Application to Cyber Operations in Armed Conflicts

International humanitarian law (IHL) has faced problems with cyberspace attacks for nearly two-decades.[13] After the 2022 United Nations Open-Ended Working Group (UN OEWG) on information and communications technology, the UN OEWG committee affirmed the applicability of IHL to the use of cyber warfare in armed conflict.[14] The global norm also bends in the same direction: many State and international organizations like the European Union (EU) and North Atlantic Treaty Organization (NATO) have likewise affirmed IHL’s applicability.[15]

However, there is no specific framework of law surrounding cyberspace, unlike fields such as space law which is the domain of codified international legal rules.[16] In the absence of an established framework, IHL resorts to definitions already within its structure: those for conventional warfare.[17] Many have criticized IHL’s applicability to cyber warfare, because the language of kinetic warfare does not easily translate to cyber warfare.[18] It remains to be seen whether the oversight of cyber warfare can ever be disentangled from kinetic warfare.[19] As recognized by the recent UN OEWG, two contentious factors keep cyber warfare on this threshold: determining what qualifies as an attack and attributing these attacks to actors.[20]

IV. The Consequences

A. Defining a Cyber “Attack”

Defining an “attack” is one of the primary principles of customary IHL, which has comprehensively provided prohibitions for its many forms, from the indiscriminate to the disproportionate.[21] However, there are diverging interpretations of how IHL governs cyberattacks that do not render “tangible” damage but only some loss of functionality, such as the effects of malware on network systems.[22] In theory, both cyber and kinetic means have similar “operational access” and impacts on the physical world.[23] The similarity ends in the distance between access and impact.[24] Where kinetic operations are nearly immediate between access and impact, cyber operations have a characteristic gap between the two, which yields a very different attack result.[25] This gap is what makes a cyber-attack that much more distinct: an incoming missile strike is guaranteed to be immediate, whereas the effects of a cyberattack can ripple and linger for months after.[26] 

The International Committee of the Red Cross (ICRC) has previously expressed concerns that a restrictive definition of “attack,” such as one that only encompasses results like death, injury, or physical damage, would remove the protection of IHL from many of the civilian targets of cyberattacks.[27] Many argue that cyber operations alone cannot reach these destructive capabilities[28] and lack the same impact of decisive results and assured, instant effects as that of kinetic operations.[29] As one source quipped, “No one has ever died by a cyberattack.”[30] However, Ukrainians have lost power in the middle of winter[31] and received spambot messages urging defection and treason against Ukraine.[32] Most cyberattacks may not have instantly visible, tangible results, but there is, with some certainty, still a felt effect. To be perceived as an attack and to fall under the protection of IHL, each of these examples would have to stretch the existing, constrained definitions currently found within IHL—the definitions that typically emphasize the dramatically immediate physical effects of kinetic warfare.[33]

B. Actor Recognition

Another core principle of customary IHL is the enforceable norm of a State’s responsibility for its actors.[34] Typically, a State is responsible for violations committed by its own forces and for the people it empowers to exercise governmental authority, people or groups acting on the State’s instructions or control, and actions by private persons or groups which the State “acknowledges and adopts as its own conduct.”[35]

Further, cyber warfare frustrates the opposition’s ability to identify and hold individual actors responsible, and, by extension, any affiliated or sponsoring State.[36] For example, members of military cyber units are considered combatants under IHL because they are members of the armed forces of a party to an international armed conflict.[37] However, advanced persistent threats (APT), like anonymous hacker organizations are not always clearly military or State-sponsored entities.[38] At the start of the Russian invasion, a private Brazilian hacker company attacked Ukrainian universities’ websites, an action not claimed by either Russia or Brazil.[39] On an even larger scale, Ukraine has amassed a cyber-army of volunteers, who, while undoubtedly retaining connections to Ukraine’s established defense forces, remain decentralized and without traditional State oversight mechanisms.[40] In the era of global privatized and decentralized forces,[41] it is no surprise that the trend extends to cyberspace. As a result, the often-elusive actors committing cyberattacks confound the old concepts of attribution under IHL.

V. Conclusion

The mass cyber army mobilization on both sides of the Russian invasion provides a glimpse into what the future of cyber warfare could look like: attacks performed largely by non-State or quasi-State forces. Consider the opening example again: an attack that yielded no physical result at the time[42] conducted by individuals recruited through a Telegram channel.[43] Not only was the effect markedly different from a conventional kinetic attack, but the associated actors evade the standard attribution of a State or state-sponsored actor. IHL stands to guide States and organizations toward a more detailed and specific understanding of cyberattacks, especially as global conflicts continue to wage new and evolving forms of conflict.[44] The language of kinetic warfare remains the standard, but for IHL to effectively address cyberwarfare, it must be informed of the similarities, and also the drastic differences, between the two.

*Anastasia Couch is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. In summer 2022, Anastasia interned with the Maryland State Ethics Commission and looks forward to interning with Citizens for Responsibility and Ethics in Washington (CREW) in the upcoming spring semester. Anastasia hopes to continue to work in government oversight after receiving her J.D. and currently pursues her passion by volunteering with Women for Weapons Trade Transparency.

Photo credit: Stefan Kuhn (This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.)

[1] Ukraine Nuclear Power Company Says Russia Attacked Website,Al Jazeera (Aug. 16, 2022), https://www.aljazeera.com/news/2022/8/16/ukraine-nuclear-power-company-says-russia-attacked-website.

[2] Id. See infra note 41.

[3] Id.

[4] Al Jazeera, supra note 1; Joel Middleton & Samantha Lock, Russia-Ukraine War Latest: What We Know on Day 175 of the Invasion, The Guardian (Aug. 17, 2022), https://www.theguardian.com/world/2022/aug/17/russia-ukraine-war-latest-what-we-know-on-day-175-of-the-invasion.

[5] James Andrew Lewis, Cyber War and Ukraine, Center for Strategic and International Studies (Aug. 24, 2022), https://www.csis.org/analysis/cyber-war-and-ukraine.

[6] Id.

[7] Slate Herman, Cybersecurity and the U.N Charter: A Square Peg in a Round Hole, 19 Colo. Tech. L. J 217, 231 (2021).

[8] See Josiah Dykstra et al., Differentiating Kinetic and Cyber Weapons to Improve Integrated Combat, 99 Joint Force Q., 116, 116–17 (2020).

[9] Id.

[10] See Lewis, supra note 5.

[11] Microsoft Digital Security Unit, Special Report: Ukraine 8 (2022).

[12] Id.

[13] Ewan Lawson & Kubo Mačák, Int’l Comm. of the Red Cross, Avoiding Civilian Harm From Military Cyber Operations During Armed Conflicts 37 (2020), https://www.icrc.org/en/document/avoiding-civilian-harm-from-military-cyber-operations.

[14] Tilman Rodenhäuser & Veronique Christory, Capacity-Building Tools on “How and When” IHL Applies to Cyber Operations During Armed Conflict, 2 Cyber Peace & Security Monitor 13, 13 (2022).

[15] Lauren Gisel et al., Twenty Years On: International Humanitarian Law and the Protection of Civilians Against the Effects of Cyber Operations During Armed Conflict, 913 Int’l Rev. Red Cross 287, 299 (2021).

[16] Kubo Mačák, Unblurring the Lines: Military Cyber Operations and International Law, 6 J. Cyber Pol’y 411, 412–13 (2021).

[17] See Rodenhäuser & Christory, supra note 13, at 14.

[18] See Herman, supra note 7, at 230;Gisel, supra note 14, at 314; Mačák, supra note 15, at 416.

[19] See Gisel, supra note 14, at 304; Mačák, supra note 15, at 414.

[20] Rodenhäuser & Christory, supra note 13, at 14.

[21] See Gisel, supra note 14, at 312; Jean-Marie Henckaerts & Louise Doswald-Beck, Customary Int’l Humanitarian L.: Rules 3, 46 (2005).

[22] Michael N. Schmitt, Wired Warfare 3.0: Protecting the Civilian Population During Cyber Operations, 101 Int’l Rev. Red Cross 333, 339 (2019); Dykstra et al., supra note 8, at 118 (noting that, unlike most kinetic ops, the effects of cyberattacks on the physical world are often reversible, like the use of a decryption key to reverse the encryption used in ransomware).

[23] See Dykstra, supra note 8, at 118.

[24] Id. Operational access is “the ability to project military force into an operational area with sufficient freedom of action to accomplish the mission.” Id.

[25] Id.

[26] Id.; see also Mike McQuade, The Untold Story of NotPetya, the Most Devastating Cyberattack in History, Wired (Aug. 22, 2018), https://www.wired.com/story/notpetya-cyberattack-ukraine-russia-code-crashed-the-world/

[27] See Schmitt, supra note 21, at 341.

[28] Lewis, supra note 5.

[29] Lewis, supra note 5; Dykstra et al., supra note 8, at 118.

[30] Lewis, supra note 5.

[31] Council on Foreign Relations, Compromise of a Power Grid in Eastern Ukraine, Council on Foreign Relations (Aug. 24, 2022), https://www.cfr.org/cyber-operations/compromise-power-grid-eastern-ukraine.

[32] See Microsoft Digital Security Unit, supra note 11, at 15; Lorenzo Franceschi-Bicchierai, Ukraine Accuses Russia of Using WhatsApp Bot Farm to Ask Military to Surrender, Vice (Aug. 24, 2022), https://www.vice.com/en/article/5dgemn/ukraine-accuses-russia-of-using-whatsapp-bot-farm-to-ask-military-to-surrender.

[33] Gisel, supra note 14, at 314.

[34] Henckaerts & Doswald-Beck, supra note 20, at 3; Lawson & Mačák, supra note 12, at 25.

[35] Henckaerts & Doswald-Beck, supra note 20, at 530.

[36] See Gisel, supra note 14, at 296.

[37] Mačák, supra note 10, at 419.

[38] Lawson & Mačák, supra note 12, at 13.

[39] Mark Maunder, Ukraine Universities Hacked As Russian Invasion Started, Wordfence (Aug. 24, 2022), https://www.wordfence.com/blog/2022/03/ukraine-universities-hacked-by-brazilian-via-finland-as-russian-invasion-started/. What makes cyberwarfare even more complex are the varying “domains” it touches–note that the Brazilian hackers attacked Ukrainian Sites via the Sweden-based hosting provider, which routed the malicious traffic involved in this attack. Id.

[40] Lorenzo Franceschi-Bicchierai, Inside Ukraine’s Decentralized Cyber Army, Vice (Aug. 24, 2022), https://www.vice.com/en/article/y3pvmm/inside-ukraines-decentralized-cyber-army.

[41] See generally, Sean McFate Mercenaries and War: Understanding Private Armies Today National Defense University Press: News (Dec. 4, 2019), https://ndupress.ndu.edu/Media/News/Article/2031922/mercenaries-and-war-understanding-private-armies-today/.

[42] Kate Conger & Adam Satariano, Volunteer Hackers Converge on Ukraine Conflict With No One in Charge, New York Times (Mar. 4, 2022), https://www.nytimes.com/2022/03/04/technology/ukraine-russia-hackers.html.

[43] Al Jazeera, supra note 1; Max Hunder, Zaporizhzhia Nuclear Plant Still Disconnected From Grid, Ukraine’s Energoatom Says, Reuters (Aug. 26, 2022), https://www.reuters.com/world/europe/zaporizhzhia-nuclear-plant-still-disconnected-grid-ukraines-energoatom-says-2022-08-26/. Though the initial cyberattack yielded no results, the affiliated nuclear plant was disconnected from Ukraine’s power grid. It is argued that the disconnection was due to kinetic ops and physical destruction to the electric lines, which perfectly captures the problem of cyber warfare. See discussion supra Section IV. a.

[44] Al Jazeera, supra note 1.

Medical Coercion During Pregnancy and Childbirth

*Cherie Correlli

I. Introduction

Maternity care is a distinctive medical setting in which there is a startling lack of informed-consent-based medical procedures.[1] Women’s reports of their care indicate that interventions are routinely performed without meaningful consent, violating their autonomy in medical decision-making.[2] These interventions may include medical inductions, medications, mobility-limiting fetal monitoring methods, episiotomies, and cesarean-section surgeries.[3] Using coercive tactics to induce compliance with providers’ medical recommendations is one category within a broader range of mistreatment in pregnancy and childbirth termed “obstetric violence.”[4] These incidents of mistreatment and consent violations occur in the context of the complex power relationship between providers and patients during pregnancy and childbirth.[5] The current debate around fetal personhood has serious implications for medical coercion in pregnancy and childbirth.[6]

II. Medical Coercion

A. Informal Coercion

Informal coercion, a violation of proper informed consent, is the most commonly used method of medical coercion during pregnancy and birth, which involves persuasion, pressure, and threats.[7] This may include providing inaccurate or incomplete information to obtain consent or using emotional scare tactics.[8] Doctors believe patients should trust the physician’s expertise when it comes to potential risks to the baby.[9] Most patients do acquiesce when faced with the emotional pressure to either follow the doctor’s recommendation or jeopardize the baby’s safety.[10] Pregnancy provides a unique context where doctors commonly assert the right to compel their patients to comply with their medical advice.[11] Doctors’ responses to their pregnant patients emerge as a startling exception to the nearly universal consensus that patients, not doctors, should determine whether and when to undergo medical treatment.[12]

The rationalization for coerced medical procedures usually invokes a perceived risk to the fetus; however, many compelled medical treatments in pregnancy lack scientific basis.[13] Many obstetric recommendations are based on limited, inconsistent evidence and recommendations and standard practices vary widely among providers.[14] The recommendations a pregnant person receives can be vastly different, depending on where the person seeks care and the provider they see.[15] This makes a case for autonomous decision-making in childbirth even more compelling.

B. Threats of Child Protective Services

Threats of involving Child Protective Services are sometimes invoked as a coercive measure when a patient declines to follow medical advice.[16] These threats can be a powerful method of coercion to secure compliance with the medical recommendation of a care provider.[17] In 2010, Michelle Mitchell’s (Mitchell) doctors recommended that she plan an induction or cesarean based on the belief that she was carrying a large baby.[18] At the hospital, Mitchell signed a form acknowledging her intention to decline the surgery and waive liability.[19] The on-call physician became angry and threatened to seek a court order to compel a cesarean and call the child welfare authorities to remove her baby after the birth.[20] In response to these threats, Mitchell rescinded her informed refusal and agreed to the surgery.[21] Despite Mitchell’s eventual acquiescence, the hospital reported Mitchell to the child welfare agency and refused to release the baby into her care.[22] After three months of interviews and home visits, the child welfare agency dismissed the investigation as baseless.[23] For Mitchell, and many others, the threat of Child Protective Services involvement is enough to compel compliance, whether or not the agency actually gets involved.[24] This threat is particularly powerful for poor women, women of color, and young women, who are more likely to have experienced state involvement and scrutiny of their reproductive decision-making.[25]

C. Medical Procedures and Forced Surgeries Without Consent

Coercive medical interventions can also include formal coercion by overriding a pregnant person’s autonomic choices in a forceful, violent manner.[26] In the case of Laura Pemberton, who had chosen to give birth at home with a midwife, a court ordered that she instead undergo a cesarean section, citing a substantial risk of uterine rupture due to her previous cesarean birth, which could potentially could result in the death of the fetus.[27] A sheriff went to her home and forced her to be taken to the hospital by ambulance against her will, where the court-ordered cesarean section was performed.[28]

Not all forced surgeries or procedures involve court orders. In the midst of a labor that was progressing normally, Laura Turbin’s doctor informed her that he was going to cut an episiotomy, an incision in the perineum, to prevent tearing during birth.[29] She said no and repeatedly protested while the doctor proceeded to cut her perineum twelve times, an incident that Turbin’s mother captured on video.[30]

III. Fetal Personhood’s Impact on Medical Coercion

The fetal personhood debate has renewed vigor in the wake of the Supreme Court’s overturning of Roe v. Wade.[31] In the context of obstetric care during pregnancy and childbirth, the concept of fetal personhood is ever-present.[32] Outside of pregnancy and childbirth, physicians generally accept that patients hold the final decision-making power, aligning with medical principles of self-determination, autonomy, and bodily integrity.[33] However, many obstetric providers see themselves as having a duty to the fetus during pregnancy and birth.[34] Often, they perceive this duty as overriding their duty to their pregnant patient.[35] Obstetricians often use a standard of care that prioritizes the fetus, attempting to minimize all fetal risks, at the expense of maternal medical risks.[36] Laws that recognize fetal personhood will bolster the rationalization of coercion in pregnancy.[37] As a result, unconsented and forced medical interventions during pregnancy are almost certain to increase.[38] Fetal personhood ideas will lend support to the notion of a separate “fetal interest” as identified by the physician, who also determines how that interest relates to the plan of care.[39] The physician, then, is in the position of dictating the care decisions if the pregnant woman’s own autonomous medical care decisions are in conflict with what the physician has decided are the best interests of the fetus.[40]

IV. Conclusion

Coercion in the obstetric relationship between provider and patient often occurs at moments of intense vulnerability for pregnant and birthing people, both physically and emotionally.[41] This power dynamic, which portrays the mother as a threat to the fetus when not acting in complete compliance with a provider’s wishes, is part of an ongoing relationship of control that pervades the doctor-patient relationship.[42] Laws recognizing fetal personhood may strengthen care providers’ perceptions regarding their duty to act in the best interest of the fetus and exacerbate issues of coercive control already prevalent in the obstetric care setting. As the debate over fetal personhood continues to make headlines, action is required to eliminate medical coercion and implement consent-based treatment as the standard of care in pregnancy and childbirth.

*Cherie Correlli is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society, and Research Assistant for Professor Lande. She worked as a birth doula in the Baltimore area for over a decade before law school. Cherie hopes to use her experience in birth work and legal skills to work on reproductive justice issues in the future.

[1] Jamie R. Abrams, The Illusion of Autonomy in Women’s Medical Decision-Making, 42 Fla. State U. L. Rev. 17, 49 (2014).

[2] Saraswathi Vedam et al., The Mothers on Respect (MOR) Index: Measuring Quality, Safety, and Human Rights in Childbirth, 3 SSM Population Health, 201, 202 (2017).

[3] Elizabeth Kukura, Birth Conflicts: Leveraging State Power to Coerce Health Care Decision-Making, 47 U. Balt. L. Rev. 247, 249 (2018).

[4] Alexa Richardson, The Case for Affirmative Consent in Childbirth, 37 Berkeley J. Gender L. & Just. 1, 8 (2022).

[5] Id.

[6] Debra DeBruin & Mary Faith Marshall, Coercive Interventions in Pregnancy: Law and Ethics, 23 J. Health Care L. & Pol’y 187, 197 (2021).

[7] Stephan Oelhafen et al., Informal Coercion During Childbirth: Risk Factors and Prevalence Estimates from a Nationwide Survey of Women in Switzerland, 21 BMC Pregnancy &Childbirth 369, 369 (2021).

[8] Vedam, supra note 2, at 202.

[9] Abrams, supra note 1, at 49.

[10] Id.

[11] Id.

[12] Id.

[13] Richardson, supra note 4, at 39.

[14] Id.

[15] Id.

[16] Kukura, supra note 3, at 254.

[17] Id. at 258.

[18] Id.

[19] Id. at 259.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 261.

[25] Id.

[26] Oelhafen, supra note 7, at 369.

[27] Id.

[28] Id. at 189. Ms. Pemberton went on to deliver her subsequent pregnancies vaginally, raising serious questions about the risk assessment that led to the court order. Id.

[29] Richardson, supra note 4, at 13. The American College of Obstetricians and Gynecologists (ACOG) recommends against the use of routine episiotomies. Id. (citing Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin No. 198: Prevention and Management of Obstetric Lacerations, 132 Obstetrics & Gynecology e87, e97 (Sept. 2018)).

[30] Id.

[31] Kate Zernicke, Is a Fetus a Person? An Anti-Abortion Strategy Says Yes, N. Y. Times (Aug. 21, 2022), https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html.

[32] See Debruin & Marshall, supra note 6, at 193.

[33] Richardson, supra note 4, at 44.

[34] Debruin & Marshall, supra note 6, at 193.

[35] Id.

[36] Abrams, supra note 1, at 49.

[37] Debruin & Marshall, supra note 6, at 197.

[38] Rebecca Kluchin, If Courts Recognize Fetal Personhood, Women’s Rights are Curtailed, Wash. Post (May 12, 2022, 6:00 AM), https://www.washingtonpost.com/outlook/2022/05/12/if-courts-recognize-fetal-personhood-womens-rights-are-curtailed/.

[39] Abrams, supra note 1, at 43.

[40] Id. at 49.

[41] Richardson, supra note 4, at 9.

[42] Id. at 11.

In the Name of Public Safety: Issues and Exceptions to Maryland’s Child Interrogation Protection Act

*Qiara Butler

I. Introduction

In April 2022, the Maryland General Assembly passed several pieces of legislation involving police accountability and their interactions with the community.[1] One of the most impactful pieces of legislation was Senate Bill 53, also known as the Child Interrogation Protection Act.[2] This statute, which went into effect October 1, 2022,[3] establishes three key requirements when children under 18 years of age are taken into custody by police: (1) “actual notice” to the parent, guardian, or custodian that the child is in police custody,[4] (2) the maintenance of detailed records,[5] and (3) for the child to have a consultation with an attorney prior to an interrogation.[6]  Because Black children are vastly over represented in Maryland’s juvenile prisons,[7] this legislation will have a critical impact on Maryland’s legal system.

II. Legal Development

These new requirements are starkly different from the previous juvenile criminal law requirements.[8] The law requires that the officer give notice in a manner that is “reasonably calculated to give actual notice,”[9] including keeping a record of the following information: (1) the child’s location, (2) the reason for the child being taken into custody, and (3) instructions to the parent, custodian, or guardian on how to make immediate in-person contact with the child.[10] The requirement of the attorney consultation before custodial interrogation by police is a completely new addition to this criminal law.[11] Not only is the consultation required, but it cannot be waived.[12] Both notice and consultation requirements must occur prior to a law enforcement officer’s custodial interrogation of a child.[13]

The purpose of this legislation is to provide juveniles with added due process protections, recognizing “juveniles’ increased vulnerability in custodial interactions with officers due to their lessened developmental capacity and increased deference to adult authority figures.”[14] These added measures are proposed to decrease the likelihood of harm to juveniles in the criminal legal system such as self-incrimination and false confessions.[15] Often, when children are questioned by police, they do not understand their Miranda rights,[16] the “risks and consequences” of speaking with officers, nor whether they are even in custody.[17] Lack of support from an attorney or even a parent for these children can lead to statistically detrimental effects.[18]

III. Foreseeable Obstacles

However, despite its honorable purpose, this legislation was not embraced unanimously. It faced fierce opposition from law enforcement and other representatives in the legal community.[19] This opposition could present unforeseen procedural resistance to the enforcement of this law through the overuse of exceptions in the statute.[20]

A. The Public Safety Exception

The Child Interrogation Protection Act (Act) seems to provide added protections to juveniles, but it comes with exceptions.[21] Section G(1)(I) of Senate Bill 53 provides that a “lawful” custodial interrogation can occur without following the aforementioned requirements[22] if “[t]he law enforcement officer reasonably believes that the information sought is necessary to protect against a threat to public safety[.]”[23] This public safety exception could be overused by law enforcement to circumvent the protections of this law. Recently, juvenile crime has been spotlighted in the media.[24] This exception could easily provide a way for law enforcement to disregard the statute’s requirements and conduct their interrogations of juveniles while still being deemed “lawful.”[25]

B. Rebuttable Presumption of Inadmissibility

The Act also appears to provide an exception through a rebuttable presumption of inadmissibility,[26] meaning that even if law enforcement fails to meet the statutory requirements to perform a custodial interrogation of a child, the ill-gotten evidence is not automatically barred from admission against the child in court.[27] Instead, the statute creates a rebuttable presumption of inadmissibility which can be overcome by showing that the child’s statement was made “knowingly, intelligently, and voluntarily.”[28] This showing disregards the scientific evidence that juveniles have a diminished developmental capacity[29] and essentially negates the reason the statute was created.

IV. Conclusion

Because the Act went into effect on October 1, 2022, it can only be speculated how law enforcement and the courts will construe and apply the statute. Although this legislation was created in hopes that it would provide much needed protections for Maryland juveniles, in practice, this law will likely face lots of practical opposition. The exceptions are potentially fatal to the legislation’s original purpose.[30] Only time will tell.

*Qiara Butler is a third-year evening student at the University of Baltimore School of Law. She has been working for the Social Security Administration as a Disability Examiner for twelve years, and since 2017, splits her day to work as a union steward and, most recently, as 5th Vice President for the American Federation of Government Employees Union Local 1923.

On her path to becoming an attorney, Qiara has managed to balance many responsibilities, including, but not limited to volunteering for internships and other activities. She interned for the U.S. Attorney’s Office in Baltimore as a Volunteer Law Clerk and as a Judicial Intern with the Honorable Judge Myshala Middleton for the Baltimore City Circuit Court. She is now a member of the University of Baltimore’s Law Review as a Staff Editor, the Community Service Chair for the Mid-Atlantic Region of the Black Law Student’s Association, and the University of Baltimore’s Representative for Alliance of Black Women Attorneys of Maryland. She is also currently taking a Mediation Skills course that will provide her the 40 hours she needs to become a practicing mediator. In addition, Qiara serves as a research assistant for Professor John Lynch.

Qiara will be summering in the Baltimore office of Saul Ewing Arnstein & Lehr LLP for the summer of 2023.

[1] See Bills Passed by the House and Senate during the 2022 Legislative Session (April 13, 2022). https://reznikformaryland.com/bills-passed-by-the-house-and-senate-during-the-2022-legislative-session/.

[2] Md. Code Ann., Crim. Proc. § 2-108 (West 2022) (hereinafter “the Act”).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Ryan McFadden, Juvenile Detention Declined, Yet Black Children Detained at High Rate, Capital News Service (Jan. 2, 2021), https://www.marylandmatters.org/2021/01/02/juvenile-detention-declined-yet-black-children-detained-at-high-rate/ (According to semi-recent data Black children make up 77% of detainees, but only about 31% of the total population).

[8] See Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (repealed Oct. 2022) (West 2022).

[9] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022) (emphasizing that the Maryland Code on Juvenile Causes Courts and Judicial Proceedings Section 3-8A-14 only required an officer to provide minimal notice).

[10] Id.

[11] Compare id., with Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (repealed Oct. 2022) (West 2022).

[12] Id.

[13] Id.

[14] Haley Shefferman, Legislative Update: Maryland’s New Child Interrogation Protection Act Will Provide Much Needed Safeguards for Youth, 42 Child. Legal Rts. J. 181 (2022).

[15] Id.

[16] Id. (defining Miranda rights as “the constitutional rights to refuse to answer questions and to consult with an attorney, which officers must inform individuals of before any custodial interrogation can take place”).

[17] Id. at 182.

[18] Id.  at 183 (“Youth waive their Miranda rights in eighty percent of custodial interrogations nationally. Youth are also far more likely to confess to crimes they did not commit–thirty six percent of exonerees nationally made false confessions when they were children, while ten percent made false confessions as adults, according to the National Registry of Exonerations. In addition, youth of color are even more likely to make false confessions due to police bias in these interactions.”).

[19] Id. at 182.

[20] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).

[21] Id.

[22] Id.

[23] Id.

[24] See Pilar Aris, Two Juveniles in Custody for Killing a Maryland Gas Station Employee, Police Say, Fox News (Aug. 14, 2022), https://www.foxnews.com/us/two-juveniles-custody-killing-maryland-gas-station-employee-police-say.

[25] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).

[26] Id.

[27] PRESUMPTION, Black’s Law Dictionary (11th ed. 2019).

[28] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).

[29] See Shefferman, supra note 13.

[30] Id.