Miranda warnings and the Fifth Amendment are well-known concepts in the United States, but did you know that Washington state has its own constitution with a separate self-incrimination clause? Article 1 Section 9 provides greater protection for individuals, but the true extent of this provision has yet to be fully explored. In this essay, I will discuss the implications of Article 1
Section 9 and the current state of the law.
Article 1 Section 9:
Article 1 Section 9 of the Washington State Constitution guarantees the right against self- incrimination. This provision states that “No person shall be compelled in any criminal case to give evidence against himself.” Unlike the Fifth Amendment, which specifically mentions “witness” and “testimony,” Article 1 Section 9 uses the broader term “evidence.” This suggests that the protection offered by this provision may extend beyond just testimonial evidence.
Current State of the Law:
While Article 1 Section 9 provides greater protection than the Fifth Amendment, its full extent has not been explored. Washington State law currently holds that Section 9 protection “co- exists” with the Fifth Amendment. However, two important milestones have challenged this thinking.
For decades, legal practitioners assumed that the 5th amendment “co-existed” with Art 1 Sec 9 despite the plain language.
The first is the implementation of the “Gunwall test” by the Washington Supreme Court. This test determines whether Washingtonians enjoy greater constitutional protection in a particular context than the federal constitution provides. This test was not in place when the 1970 Supreme Court stated that the provisions provide co-existing protection.
The second milestone occurred in 2014 with the case of State v. Piatnisky. The Supreme Court requested the gunwall analysis from appellate counsel, indicating that they were open to the possibility of greater protection under Article 1 Section 9.
Despite these milestones, there is no single case that definitively funds greater protection under Article 1 Section 9. However, this has not stopped litigators from attempting to explore the potential implications of this provision.
Conclusion:
In conclusion, Article 1 Section 9 of the Washington State Constitution provides greater protection against self-incrimination than the Fifth Amendment. While the full extent of this provision has yet to be explored, litigators have attempted to push the boundaries of Section 9 protection in various contexts. As the law continues to evolve, it will be interesting to see how
Article 1 Section 9 is interpreted and applied in criminal cases.