This is, of course, an absolutely serious question. We would not feel comfortable with any verdict if a defendant's constitutional rights were trampled in the process. In the case of Byron Case, however, his Fifth Amendment rights were not violated.

This issue was addressed by the Appellate Court in appeal WD61626.¹ We will try to sumamrize: The portion of the Fifth Amendment applicable to this discussion states that "No person . . . shall be compelled in any criminal case to be a witness against himself". Byron Case argued that the police had circumvented his right to remain silent through trickery, and that his conversation with Kelly Moffett should have been ruled inadmissable. The Court found that since he had not been charged with the crime at the time of that conversation, he was under no compulsion to speak. The Fifth Amendment specifically applies to situations in which an individual has been charged with a crime or is under oath in court; it does not prohibit the use of an undercover agent if a suspect had not yet been charged.

Case argued in his appeal that the police had probable cause to have arrested him once Moffett first came forward with her testimony in September 2000, and that they were in violation of his rights when they recorded his conversation nine months later; as noted in the Court's opinion, "there is no constitutional right to be arrested", and the police were under no constitutional requirement to halt their investigation the moment they had minimum evidence to establish probable cause.

Case also claimed that his grant of immunity in July 1999, the last time he voluntarily spoke to police (he refused all further requests for interviews), was a blanket grant of his Fifth Amendment rights. In truth, he never actually invoked the Fifth Amendment at that time, but only received a letter that guaranteed him freedom from criminal prosecution specifically for anything incriminating he might say during that interview. Before his trial, as defendant he filed a pre-trial motion to suppress that statement, arguing that he had never been read his Miranda rights, and that the same logic should be applied to the taped conversation. The State agreed to supress his interview, but because of the earlier agreement, not because of Miranda issues.²

In short, there is no dispute that Case was tricked by the police into making a tacit admission in the taped conversation with Kelly Moffett, but because he had not been charged with a crime and was not at that time in custody, they did not violate his right against being compelled to incriminate himself. Also, the police and the Prosecutor's Office, in conditionally agreeing not to use any of his statements from his July 29 1999 interview against him, had not granted him any sort of blanket immunity that he could invoke later as it suited him.

So our answer is no, Byron Case's Fifth Amendment rights were not violated by police or prosecutors when his tacit admission was tape recorded.