Academic journal article Boston University Law Review

The Prophylactic Fifth Amendment

Academic journal article Boston University Law Review

The Prophylactic Fifth Amendment

Article excerpt

JUSTICE KENNEDY: So beating a prisoner to compel a-a statement is not a Fifth Amendment violation.

DEPUTY SOLICITOR GENERAL PAUL CLEMENT: That's right, Justice Kennedy. It's not a Fifth Amendment violation. . . .

JUSTICE KENNEDY: What about the order of a trial judge in a civil case who orders the witness held in contempt and confined unless he testifies, and-and there's a valid Fifth Amendment privilege that the judge is overlooking? No Fifth Amendment violation there?

CLEMENT: No. I don't think there's a Fifth Amendment-I don't think there's a complete Fifth Amendment violation. The courts intervene there to protect the privilege.1


The right guaranteed by the Fifth Amendment's Self-Incrimination Clause appears straightforward: no person "shall be compelled in any criminal case to be a witness against himself."2 Despite its basic terms, historical pedigree, and well-known status as a constitutional right, the public's understanding of what is protected by the Fifth Amendment is often ill informed, and even sophisticated lawyers are not always capable of explaining the scope and application of the right.3 Indeed, supporters of the right not "to be a witness against [one]self"4 have not been particularly adept at explaining why America needs the Fifth Amendment.5 This uncertainty about the scope of the privilege, as well as the inability to persuasively defend it, may be due to the fact that many Americans do not consider the Fifth Amendment one of the "respectable freedoms"-like the right to freedom of speech or freedom of religion.6 Too many people associate the Fifth Amendment with criminals, and believe that only guilty individuals invoke the Fifth.7

On the other hand, despite some misunderstanding about the constitutional nuances of the Fifth Amendment, informed citizens realize that the privilege bars law enforcement officers from using coercion to compel an incriminating statement from a suspect. As some have observed, "[t]he heyday of what came to be known in American culture as the 'third degree'-the infliction of physical pain or mental suffering to obtain information about a crime-was the first third of the twentieth century."8 Despite what police officials said or thought about the third degree in the 1930s,9 the use of coercion, whether physical or psychological, was (and still is) condemned by most Americans.10 And, if a legal basis were needed to support condemnation of police coercion to obtain incriminating statements, many folks would point to the Fifth Amendment's privilege against compelled self-incrimination.

Tellingly, those who instruct police detectives on the proper methods of interrogation tell their pupils that coercion and coercive questioning is forbidden by the Constitution. Police interrogation manuals and other training materials are "the medium through which investigators acquire their working knowledge of the constitutional law of criminal procedure, the primary source of external restraint on their interrogation practices."11 Indeed, the author of the first published police interrogation manual admonished his readers never to utilize third-degree tactics.12 And Fred Inbau, who wrote the first edition of what became "the most widely read and best known police interrogation manual in American history,"13 unequivocally opposed the use of coercion during police interrogation.14 Today's interrogation manuals similarly proscribe using coercion or its equivalent during interrogation.15

Of course, the Supreme Court, until very recently, had not disagreed with the view that the Constitution bars police from using coercion while interrogating a suspect. In a series of cases from the mid-1930s to the mid-1960s, the Court reversed state court convictions where police utilized coercion to obtain incriminating statements from suspects, and those statements were later admitted at trial.16 Concededly, the Court relied on the Fourteenth Amendment's Due Process Clause as the constitutional basis for reversing state court convictions. …

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