The erosion of the right against self-incrimination

February 8, 2023

Client Self-incrimination | Case Review


2023 Fla. App. LEXIS 262*

Case No. 4D19-1629 (Decided January 18, 2023)

In a recent case, Elcin Sibrun received some bad news from the Florida Supreme Court which quashed the opinion in Sibrun v. State, So. 3d 996 (Fla. 4th DCA 2020), and remanded his case for reconsideration in light of Davis v. State, 332 So. 3d 970 (Fla. 2021). It was bad news for Sibrun and for those who believe anyone accused of a crime should be entitled to continue to not accept responsibility even after a conviction, without fear of retaliation at sentencing.

The Fifth Amendment Right against Self-incrimination

Sibrun appealed his convictions and sentences for one count of lewd or lascivious battery on a child older than 12 years old but less than 16 years old and seven counts of electronic transmission of material harmful to a minor. Sibrun raised five issues on appeal, but the Court rejected all arguments presented, except for one.

Sibrun argued that the circuit court committed an error when it considered his lack of remorse during his sentencing. The sentencing court stated that based on Subrun’s testimony, presentence investigation report, and letters from supporters, Sibrun had “not accepted any responsibility” or shown “any type of remorse or acceptance of guilt,” which weighed on the sentencer. See Sibrun, 308 So. 3d at 996. Bound by precedent, the Fourth District Court held that “a court cannot consider a defendant’s ‘protestations of innocence and failure to show remorse in determining what sentence to impose.” Id. (quoting Donaldson v. State, 16 So. 3d 314, 314 (Fla. 4th DCA 2009). The original panel followed prior precedent holding that a “‘re-sentencing is required even if a defendant’s refusal to admit guilt was but one of several factors considered by the court in imposing sentence.”‘ Id. at 997 (quoting James v. State, 264 So. 3d 982, 987 (Fla. 3d DCA 2017)). Although it held in favor of Sibrun, it certified the question to the Florida Supreme Court.

The Florida Supreme Court addressed the issue in Davis, supra, and the precedent cited to support the original opinion was no longer applicable. In a non-capital case, “the statutory scheme . . . does not foreclose consideration in the sentencing of the defendant’s failure to accept responsibility.” Davis at 975.

Constructive Criticism of the Davis Decision

The Fifth Amendment to the U.S. Constitution provides, in relevant part:

“No person … shall be compelled in any criminal case to be a witness against himself….” 

Holding defendants convicted of non-capital offenses to a different standard on the “failure to accept responsibility” than those convicted of capital offenses will pressure defendants like Sibrun charged with non-capital offenses to waive the right to not “be a witness against himself” by accepting responsibility.

Davis suffers from an Orwellian problem, as it is “double-talk” that effectively rewrites the Fifth Amendment. The erosion of the constitutional right against self-incrimination marches on.

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