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State v. Rees, attorneys and footnotes

Attorneys for State:

Andrew Ketterer, Attorney General
Donald W. Macomber, Asst. Attorney General (orally)
6 State House Station
Augusta, ME 04333-0006

Michael E. Povich, District Attorney
P O Box 722
Ellsworth, ME 04605

Attorney for defendant:

Kevin L. Barron, Esq., (orally)
P O Box 797
Bar harbor, ME 04609-0797
FOOTNOTES******************************** {1} . The State is authorized to appeal from an order prior to trial suppressing evidence. See 15 M.R.S.A. § 2115-A (1980); M.R. Crim. P. 37B. {2} . The Maine Constitution provides in relevant part as follows: Section 6. In all criminal prosecutions, the accused . . . shall not be compelled to furnish or give evidence against himself . . . . Me. Const. art. I, § 6 (Supp. 1999). {3} . See, e.g., New Jersey v. Portash, 440 U.S. 450, 459-60 (1979) (holding where defendant was granted "use immunity" and compelled to testify before grand jury, defendant's statements could not be used for any reason without violating the privilege against self-incrimination); Harris v. New York, 401 U.S. 222, 226 (1971) (holding testimony obtained in violation of Miranda may be used to impeach); Walder v. United States, 347 U.S. 62, 65-66 (1954) (holding evidence obtained in violation of defendant's right to be free from unreasonable search and seizure may be used to impeach). {4} . See Miranda v. Arizona, 384 U.S. 436, 455 (Me. 1966) ("Even without employing brutality, the 'third degree' or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals."). {5} . The historical origins of the privilege itself are somewhat controversial. One noted scholar in this area is Leonard W. Levy. His book, Origins of the Fifth Amendment: The Right Against Self-Incrimination, however, is not without its critics. See generally Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (1968); The Privilege Against Self-Incrimination: Its Origins and Development (R.H. Helmholz ed., 1997). In a recent review of the work of his critics, Professor Levy concluded that "if [he] were rewriting the book [he] would make no significant changes." Leonard W. Levy, Origins of the Fifth Amendment and its Critics, 19 Cardozo L. Rev. 821, 860 (1997). {6} . Counselman provided for a sweeping immunity from the use of compelled testimony. See id. at 564-65. This holding was limited in Brown v. Walker. See Brown, 161 U.S. at 608. {7} . The underlying case arose before the Supreme Court's opinion in Miranda v. Arizona, 384 U.S. 436 (1966). {8} . We have also considered cases in which the defendant brought his or her claim under the Fifth Amendment and not under article I, section 6. See Moffett v. City of Portland, 400 A.2d 340, 343-44 (Me. 1979); State v. Buzynski, 330 A.2d 422, 425 (Me. 1974). In Moffett, however, we required some form of external compulsion. See Moffett, 400 A.2d at 344 (noting source of compulsion was a threat of disciplinary action if questions were not answered). Buzynski centered not on the issue of compulsion but rather upon whether the result was "testimony." See Buzynski, 330 A.2d at 425 (holding that order to submit to a psychiatric examination did not result in compelled testimony). {9} . Indeed, our departure from consistency with the jurisprudence of the Supreme Court has occurred principally in the areas of due process and the privilege against self- incrimination. That departure has been recent and not without internal inconsistencies. See generally State v. Collins, 297 A.2d 620 (Me. 1972); State v. Caouette, 446 A.2d 1120 (Me. 1982). {10} . That dementia led to memory gaps, not hallucinations. {11} . It is not clear whether the finding was affirmative or merely the absence of a finding on point. If the court concluded that it did not need to reach those issues because it found that the defendant suffered from mild dementia, the matter should be remanded for consideration of improper influences and coercion. {12} . See, e.g., State v. Pinkham, 411 A.2d 1021, 1023 (Me. 1980) ("Of course, in deciding whether proffered testimony is admissible in a case of this sort, the trial justice may have to weigh considerations besides the competency of the person to be a witness. For example, the presiding justice has discretionary power to exclude testimony by a child or any other witness under [M.R. Evid. 403]."), abrogated on other grounds by State v. Woodburn, 559 A.2d 343, 346 n.2 (Me. 1989); State v. Ranger, 149 Me. 52, 55-56, 98 A.2d 652, 653-54 (1953) (discussing discretion of trial court to allow examination of child witnesses under oath). {13} . But see supra note 9.

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