The defendant pled guilty to one count of conspiring to distribute five or more kilograms of cocaine. The quantity of drugs involved was crucial, because this amount would be used by the court in sentencing. The defendant reserved the right to contest the drug quantity attributable to her under the conspiracy count. The trial court advised the defendant the drug quantity would be determined at her sentencing hearing. During the sentencing proceeding, the government offered testimony from others involved in the conspiracy to establish both the number of transactions in which the defendant had participated, as well as the amount of cocaine she sold. The defendant did not testify at the sentencing proceedings, relying instead on her attorney’s attacks on the credibility of the government witnesses. The judge expressly stated that he was drawing an adverse inference from the defendant’s failure to testify at her sentencing hearing.
Whether a defendant waives her privilege against self-incrimination in the sentencing phase of the case by pleading guilty?
No. A defendant who pleads guilty does not waive her Fifth Amendment right against self-incrimination in the sentencing phase of the case.
Nothing prevents a defendant from relying upon a Fifth Amendment privilege at a sentencing proceeding. “Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants.” Otherwise, the government could compel a defendant to take the witness stand and under questioning, elicit information from the defendant that could contribute to an enhanced sentence. “Where a sentence has not yet been imposed, a defendant may have a legitimate fear of adverse consequences from further testimony.” The government retains the burden of presenting facts “relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege.” By holding her silence against her, the judge impermissibly interfered with the defendant’s exercise of her Fifth Amendment right against compulsory self-incrimination.
526 U.S. 314, 119 S. Ct. 1307 (1999)