Is There A Right to Remain Silent: Coercive Interrogation and the Fifth Amendment after 9/11

By Gottschalk, Jack A. | Journal of Psychiatry & Law, Winter 2009 | Go to article overview

Is There A Right to Remain Silent: Coercive Interrogation and the Fifth Amendment after 9/11


Gottschalk, Jack A., Journal of Psychiatry & Law


Is There A Right To Remain Silent: Coercive Interrogation and the Fifth Amendment After 9/11, by Alan Dershowitz, (New York, NY: Oxford University Press, 2007), 204 pp., $19.95

There is no doubt that Alan Dershowitz is an unabashed liberal. Whenever someone is an unabashed anything, it is a virtual guarantee that a lot of people will like that person, and that a lot of others won't. Whatever one thinks about the author, however, his thesis here is chilling, and worth reading.

The principal reason for the book lies in the little-known 2003 majority opinion of the U.S. Supreme Court in a case that came to it from a civil suit. The suit had been filed by one Oliverio Martinez, who was seeking damages from a police officer, Benjamin Chavez. Officer Chavez, Martinez claimed, had subjected him to coercive interrogation which he characterized as essentially a form of torture.

The facts of the case were that Martinez had an altercation with the police. The police claimed that during his pat down frisk, Martinez grabbed a gun from an officer's holster and pointed the weapon at officers. One officer then shot Martinez numerous times, resulting in wounds that caused permanent blindness and paralysis from the waist down. Martinez denied that he had ever seized the gun, so that there was, as a result, a police interest to demonstrate that the shooting was justified.

The interrogation was conducted by Chavez in a hospital emergency room where Martinez was blind and in severe pain. He believed that he was dying, and that he was talking to a treating doctor, not to a police interrogator. Martinez was not charged with a crime, nor was he ever given a Miranda warning.

In filing suit, Martinez claimed that his Fifth Amendment right to remain silent had been violated. The Supreme Court rejected the argument in an opinion written by Justice Thomas on the grounds that the Fifth Amendment right to remain silent had not been violated because the coerced admission about the gun made by Martinez was never used against him in a prosecution.

As Dershowitz mentions, the belief that the Fifth Amendment-based "right to remain silent" is one that Americans take for granted. But this case appears to show that the right never really existed or, in the alternative, has now disappeared from our bundle of liberties. The author takes the reader on a journey that explores the history of the Fifth Amendment, what the framers meant or may have meant when that Amendment and others were written, and how the Supreme Court has viewed "taking the Fifth" over the years. …

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