Academic journal article Journal of Criminal Law and Criminology

Questions Unanswered: The Fifth Amendment and Innocent Witnesses

Academic journal article Journal of Criminal Law and Criminology

Questions Unanswered: The Fifth Amendment and Innocent Witnesses

Article excerpt

Ohio v. Reiner, 532 U.S. 17 (2001).


In Ohio v. Reiner, (1) the United States Supreme Court examined whether a witness who denies all culpability in a child's death may still exercise a valid Fifth Amendment privilege against self-incrimination. (2) The Supreme Court previously held that the Fifth Amendment privilege protects only those witnesses who have "reasonable cause to apprehend danger from a direct answer." (3) Reiner extends the application of this standard, questioning whether a witness who claims innocence to a crime could nonetheless have "reasonable cause" to fear that her testimony would expose her to a criminal charge. (4) The validity of the Fifth Amendment privilege was pertinent to the case, since the legitimacy of the prosecution's grant of witness immunity depended on whether the witness had the right to assert the privilege. (5) The United States Supreme Court reversed the Supreme Court of Ohio, concluding that a witness who asserts innocence may not be deprived the privilege against self-incrimination. (6) The Supreme Court based its holding, in part, on the notion that "one of the Fifth Amendment's 'basic functions ... is to protect innocent men.'" (7)

This Note first argues that the Supreme Court provided inadequate analysis in its conclusion that an innocent witness may validly claim the Fifth Amendment privilege against self-incrimination. On the one hand, the Court expands the privilege, continuing the modern trend in Fifth Amendment cases. (8) On the other hand, the Court relies principally on a policy rationale that the privilege against self-incrimination is to protect innocent men, a justification that scholars now believe is tenuous at best. (9) Not only is the Supreme Court's analysis ambiguous, the Court passed on the opportunity to address the more significant issue: how to justify the grant of immunity to an innocent witness. (10) Ultimately, the Reiner court provided a weak decision that leaves questions unanswered regarding the complexities of the Fifth Amendment in the context of innocent, non-defendant witnesses.


The Fifth Amendment of the United States Constitution provides, in pertinent part, that "no person ... shall be compelled in any criminal case to be a witness against himself." (11) The First Congress proposed this language in the Bill of Rights to ensure that the new federal government would not interfere with a privilege against self-incrimination. (12) The establishment of an American privilege against self-incrimination, however, was the effect of an Anglo-American legal tradition traced back to the thirteenth century. (13)

The privilege first developed in English common law courts as a response to the inquisitorial modes of procedure used by the ecclesiastical courts, the Court of High Commission, and the Star Chamber. (14) These courts used the "oath ex officio" in prosecuting heretics who failed to conform their beliefs to the Church of England. (15) The oath forced heretics to swear before God to truthfully answer all questions before they even knew the crime of which they were accused or the identity of the accusers. (16) Since these non-conformists were helpless in redefining the substantive law that classified their activities as criminal, they looked to the common law courts for self-defense. (17) Common law lawyers found the oath "repugnant to their political values," (18) and sought to prohibit the use of the oath by relying on the Latin maxim nemo tenetur sepisum prodere ("no man is bound to accuse himself"). (19)

One of the most famous cases regarding the legality of the oath occurred in England in 1637. (20) John Lilburne was arrested for importing seditious books into England. (21) Upon questioning by the chief clerk to the attorney general about his knowledge of the seditious books, Lilburne ceased to cooperate. …

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