

Amendment V

Scholars such as John Wigmore and Leonard Levy have suggested that the privilege against self-incrimination reflects the Framers' antipathy to two specific abuses. One abuse was the European practice of judicial torture, and the other was the questioning of witnesses sworn to the oath ex officio before the notorious courts of the High Commission and the Star Chamber in England. The oath ex officio pledged the witness to answer any and all questions truthfully, without any indication of the subject matter. The oath was used to persecute political and religious dissenters and had the obnoxious effect of forcing devout individuals to choose between admitting offenses, to be followed by hanging, or denying offenses, to be followed by damnation. Some recent scholarship has offered an alternative to this account. It suggests that the privilege against self-incrimination arose mainly from American practice rather than as a reaction against European or English royal abuses.

In America the privilege arose because of the particular practice of self-representation by defendants. Consistent with the practice of English common law, the accused could not be forced to be sworn as a witness in the late eighteenth and early nineteenth centuries in America. The reason for the rule was fear that the guilty would be tempted to swear falsely and be damned by God. The accused representing himself, therefore, literally could not be called to be a witness against himself. This rule was also congenial with a law, which prevailed in England well into the nineteenth century, that parties to the litigation were themselves incompetent to testify, either on their own behalf or if examined by their adversaries. In effect, the Fifth Amendment codified this practice.

The defendant typically represented himself and could speak for himself throughout the trial, both by making unsworn statements heard by the jury and by examining witnesses. Such statements were, of course, voluntary. On the other hand, early American practice involved pretrial questioning of the accused by a magistrate or justice of the peace where the defendant could be pressed to admit wrongdoing.

The Founders, then, regarded the privilege as valuable enough to include in the Constitution, but their own practice put considerable pressure on defendants to surrender incriminating information before trial. The assertion of the privilege at trial became more common as the advent of modern police forces had the effect of replacing pretrial judicial questioning with custodial interrogation by the police, particularly when defendants availed themselves of professional attorneys.

Judicial interpretations of the Self-Incrimination Clause were slow in coming. John Marshall, both in Marbury v. Madison (1803) and in the treason trial of Aaron Burr (1807), permitted third-party witnesses to claim the privilege. The federal government prosecuted relatively few cases, and the Court held that the privilege, like the rest of the Bill of Rights, did not apply to the states, a situation that did not change until after the Civil War, when the Supreme Court, over a period of many years, read the Due Process Clause of the Fourteenth Amendment to incorporate most of the Bill of Rights.

In the 1880s, the Supreme Court took the view that the privilege protected private books and papers. With antecedents in the common law, the privilege protected an individual against a subpoena demanding incriminating private documents. Indeed, even if the government obtained the papers without a subpoena, the use of private papers as evidence against their owner was equated with compelled testimony. During this same period, the Supreme Court upheld a congressional statute providing for compelled testimony under the grant of transactional immunity, but rejected the claim that corporations could assert the privilege.

In 1964, the Supreme Court held that the privilege applies against the states as a matter of Fourteenth Amendment due process, and that testimony compelled in state court could not be used against the witness in a federal prosecution (and vice versa). Malloy v. Hogan; Murphy v. Waterfront Commission. Subsequently, Fifth Amendment doctrine changed significantly. The most dramatic change was the decision in Miranda v. Arizona (1966), holding that information received from the interrogation of arrested persons by the police was presumptively the product of unconstitutional compulsion in the absence of the specific warnings. The Miranda doctrine prohibits custodial interrogation absent a knowing and voluntary waiver of the rights to silence and counsel.

Subsequent cases have developed in detail the meaning of custody, interrogation, waiver, and the consequences of invoking silence and/or counsel. For example, the Court ruled that if the defendant elects to testify at trial, statements tainted by Miranda violations may be admitted to impeach. The Miranda exclusionary rule is also more limited with respect to derivative evidence than the Fourth Amendment exclusionary rule. In 2000, in Dickerson v. United States, the Supreme Court reaffirmed Miranda and struck down a congressional statute that had purported to return to pre-Miranda practice, although the majority appeared to concede that the Constitution itself did not require the Miranda rule.

Outside the police-interrogation context, the privilege protects against compelled testimonial evidence tending to incriminate the witness. Compulsion is not limited to court order, but includes such pressures as the threatened loss of government employment or public contracts, or an inference of guilt from silence at a criminal trial. Testimonial evidence means a communication of information from the target's memory or knowledge. Thus fingerprints, tissue samples, and physical evidence are not testimonial: the government can compel their production. In a reversal of its earlier position, the modern Court has held that the Fifth Amendment does not protect physical evidence like private papers unless official compulsion forced the defendant to create the document. In the case of private papers, the Fourth Amendment and not the Fifth Amendment normally governs the government's power to seize papers, just like the Fourth Amendment limits the government's powers to seize conversations by wiretap. The privilege applies when the evidence sought is incriminating, that is, it provides a link in a chain of proof that might be useful, and the risk of prosecution is more than fanciful. Where a violation of the Self-Incrimination Clause is the product of a directly coerced or compelled confession, the government may not use in a later case that confession or any evidence that is the fruit of such coercion. If, however, the original illegality is a violation of the Miranda rule, rather than actual coercion, the government may use in a later prosecution evidence that was discovered as a fruit of the Miranda-violative confession.

Evidence is not incriminating, however, and the privilege cannot be asserted if it is produced under an immunity order by the court, that is, a promise not to use the compelled information against the defendant. The government may grant the witness "transactional immunity," or "use and derivative use immunity." Transactional immunity bars any prosecution for the conduct to which the testimony relates. Use and derivative use immunity, the only type of immunity constitutionally required, permits the government to prosecute the witness, but only after proving that it, the prosecution, has made no use of the compelled testimony or any evidence derived from it. Typically, the prosecution will exhaust all other avenues of investigation before applying for a use immunity order, and the supporting affidavit will describe in detail all of the evidence the prosecution has prior to the compelled testimony. Nonetheless, the risk that immunized testimony may aid the prosecution indirectly is thought sufficiently serious that many states still authorize only transactional immunity above and beyond the Fifth Amendment's protections.

Leaving the Miranda situation aside, the witness must claim the privilege, or it will be deemed waived. Of course, direct police physical or psychological coercion or compulsion that produces a "confession" is inadmissible whether or not a "waiver" is asserted by the police. In addition, the government may not coercively obtain a waiver by, for example, threatening the loss of public employment or government contracts. A criminal defendant who elects to take the stand waives the privilege with respect to questions asked on cross-examination that are reasonably related to the direct examination.

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Donald A. Dripps
Professor of Law
University of San Diego School of Law