California v. Byers

Justice Harlan concurred in the result. He wrote that the purpose of the "hit and run" statute was non-criminal and the fear of self-incrimination was not enough to create actual self-incrimination in violation of the privilege. He noted that the state received very little information from the requirement and still endured a burden of proof at trial for all elements of the criminal offense. The risk of self-incrimination was not the same as actual incrimination. Justice Harlan noted that there were a line of cases that restricted the use of compulsory, self-reporting information for prosecutorial purposes, but they should be limited and not overruled.

Justice Black's dissent noted that the compulsory information from the "hit and run" statute was used to satisfy a material element of the offense. The requirement applied to those "involved in an accident resulting in damage," satisfying the material elements of the crime of property damage. Although the statute applied to a broad class of all California drivers, as applied in this particular case it violated Byers Fifth Amendment privilege. Justice Black found Byers self-report to be testimonial in nature.

Justice Brennan concluded that it was the position of the court to make the Bill of Rights "relevant to contemporary conditions" (as opposed to traditional or historical interpretations of the Bill of Rights). He criticized the plurality for making broad determinations on the tension between state law and constitutional protections writing, "only rivers of confusion can flow from lakes of generalities." Justice Brennan found that the record in the instant case resulted in a conviction from self-incrimination and that it was unnecessary to address any broader issues. He concluded that an individual could only be compelled to comply with the statute if given full immunity for prosecution. This differed substantially from the California Supreme Court ruling that would merely make such information inadmissible.