Butterfield v. State
| Decision Date | 21 April 1999 |
| Docket Number | No. 881-98,881-98 |
| Citation | 992 S.W.2d 448 |
| Parties | Tommy BUTTERFIELD, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Jeffrey M. Friedman, Austin, for appellant.
Matthew Paul, State's Atty., Austin, for the State.
Tommy Butterfield's stepdaughter was sexually assaulted, and Butterfield was a suspect. The State sought temporary custody of the child but she was missing. At a hearing held to find the child, Butterfield was asked about her whereabouts. He invoked his Fifth Amendment privilege against self-incrimination, but the judge ordered him to answer the questions. We are asked to decide whether the State may use Butterfield's statements at that hearing against him in a perjury prosecution. We hold that it may.
At the hearing, Butterfield was asked many questions about the location of his wife and her daughter, whether he had heard from them or knew where they were, and whether he had any means of finding them. Initially, he refused to answer all questions, choosing to "exercise [his] Fifth Amendment rights." Then the court ordered Butterfield to answer the questions, and he agreed to answer some but not all of them. After some discussion among the lawyers and the court, the court ruled that Butterfield had to answer all the questions asked of him, which he then did.
The State subsequently indicted Butterfield for perjury based on the statements he made at that hearing. Butterfield filed a motion to suppress the statements on the grounds that they were obtained in violation of his privilege against self-incrimination. The trial court granted this motion, and the State appealed that decision. 1 The Court of Appeals affirmed, holding that Butterfield's Fifth Amendment rights had been violated and that his statements could not be used against him in the perjury prosecution. 2 We granted the State's petition for discretionary review of that decision.
The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. 3 The Fifth Amendment privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. 4 The protection extends equally to civil proceedings because the nature of the protection goes to the questions asked, not the proceeding itself. 5
The one nearly universal exception to the scope of the immunity granted is that a witness who perjures himself while testifying under compulsion is not immune from a prosecution for perjury. 12 That the Fifth Amendment provides no protection for the commission of perjury "has frequently been cited without any elaboration as to its underlying rationale." 13 Requiring the testimony to be truthful does not in any way render the grant of immunity conditional, because the "law requires the answers of the witness under oath to be truthful." 14 Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. 15 Neither the text nor the spirit of the Fifth Amendment confers a privilege to lie. 16
In this case, the trial court ordered Butterfield to answer questions, despite Butterfield's assertion of his Fifth Amendment privilege. Neither the trial court nor the State's attorney offered Butterfield immunity for his testimony. The State does not contest the validity of Butterfield's assertion of the Fifth Amendment. We assume that Butterfield's assertion was valid, since he faced liability for tampering with a government witness by secluding his wife and step-daughter.
The trial court erred in compelling Butterfield to answer the questions without granting him immunity. The grant of the immunity is the only way to compel testimony after a valid invocation of the Fifth Amendment. Therefore, the trial court violated Butterfield's Fifth Amendment rights.
Indeed, the State concedes this much. That is, the issue the State presents which we granted for review is whether, when a witness is compelled to testify "in violation of the Fifth Amendment," the witness' testimony may be used against him in a perjury prosecution.
The Court of Appeals similarly concluded that Butterfield's Fifth Amendment right against self-incrimination had been violated. However, the Court then concluded that "our inquiry ends there." We disagree. On the contrary, our inquiry has only just begun. The question remains: despite that constitutional violation, can Butterfield's statements nevertheless be used against him in a perjury prosecution?
The Supreme Court has often approved the use of compelled testimony in later perjury prosecutions. But in each case the Court held that no Fifth Amendment violation had occurred. 17 The Supreme Court has not decided whether the State can use testimony obtained in violation of the Fifth Amendment in a perjury prosecution.
We addressed a similar issue in an isolated case nearly 100 years ago. In Twiggs v. State, 75 S.W. 531 (1903), the defendant was convicted of perjury based on statements he made before the grand jury. Because he had not been informed that he was a suspect at the time of his testimony, we held that his statements before the grand jury were involuntary and could not be used against him. We reversed the perjury conviction. Our holding was based upon the statutory requirement that a suspect in custody be warned that his testimony could be used against him. 18 But the Supreme Court reached the opposite conclusion more recently in Wong. There, the Court held that the defendant's false testimony before the grand jury could be admitted in her perjury prosecution, despite the fact that she was unwarned of her Fifth Amendment privilege. 19 The Supreme Court reasoned that, regardless of the lack of a warning, "the Fifth Amendment does not condone perjury." 20 Therefore, Twiggs has essentially been overruled by the Supreme Court.
The Supreme Court has clearly stated that the Fifth Amendment provides no protection for the commission of perjury 21 and confers no privilege to lie. 22 The reason is that perjured testimony is an affront to the basic concepts of justice. 23 Although the Court found no Fifth Amendment violation in those cases, we believe the rationale is sound and applies equally when a Fifth Amendment violation occurs. To hold otherwise would grant an individual unbridled discretion to lie in a court of law, with no repercussions. That cannot be the purpose or intent of the Fifth Amendment.
Butterfield argues that this holding subjects him to the "cruel trilemma" of self-accusation, perjury or contempt. 24 However, the Supreme Court has recently recognized that this trilemma "is wholly of the guilty suspect's own making." 25 Even the honest and contrite guilty person will not regard the third prong of the trilemma, the blatant lie, as an available option. 26 On the contrary, Butterfield had two other reasonable options. First, he could have told the truth at the hearing, then moved to suppress his statements in any later prosecution on the grounds that they were obtained in violation of the Constitution. Second, Butterfield could have remained silent and, if the trial court held him in contempt, sought habeas relief from that contempt order. 27
The "cruel trilemma" which Butterfield claims he faces is no different today than it More refused to condemn himself by telling the truth, but he also refused to lie. His wife and children begged him to submit to the oath, but he refused on principle. Butterfield, on the other hand, chose to do what More would rather die than do: commit perjury. This, of course, was an option, but not one which the law will condone. The Supreme Court has repeatedly condemned the use of perjury to avoid self-incrimination. Today, we do the same.
was nearly five hundred years ago, when Sir Thomas More was called upon by King Henry VIII to recognize the King as the supreme head of the Church. More, a devout Catholic who believed deeply in the supremacy of the Pope, had three options: he could renounce his own faith and recognize the King; he could tell the truth about his faith and most surely be executed; or he could remain silent. More remained silent, and risked his life by doing so. He was later beheaded for treason. 28
We conclude that, despite the violation of Butterfield's Fifth Amendment rights, his statements can be admitted into evidence at his perjury trial. We reverse the decision of the Court of Appeals and remand this case to the trial court.
We note that the application of Article 38.23 of the Texas Code of Criminal Procedure is not before us in this case. Although the Court of Appeals mentioned the statute in passing, neither of the parties has briefed, either in this Court or in the Court of Appeals, the applicability of that statute. Thus, we do not decide whether the outcome would be the same under a statutory analysis.
The dissent argues that we have misread the Court of Appeals' holding. We respectfully...
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...confer the right to lie under oath. Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998); Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999). Likewise, the Fifth Amendment does not confer a right to make a false entry in a governmental record. State v. Maitl......
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Self-Incrimination
...confer the right to lie under oath. Brogan v. United States , 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998); Butterfield v. State , 992 S.W.2d 448 (Tex.Cr.App. 1999). Likewise, the Fifth Amendment does not confer a right to make a false entry in a governmental record. Maitland v. Stat......
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Table of Cases
...1994), §6:57.3.2 Butler v. State, 892 S.W.2d 138 (Tex.App.—Texarkana 1994, no pet .), §§16:63.2, 17:23.2, 17:23.3.4 Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999), §§5:25, 5:41, 5:92, 5:95 Bynum v. State, 767 S.W.2d 769 (Tex. Crim. App. 1989), §§7:84, 12:92.1, 12:93.3, 13:23.1.......
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Self-Incrimination
...confer the right to lie under oath. Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998); Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999). Likewise, the Fifth Amendment does not confer a right to make a false entry in a governmental record. State v. Maitl......