Turmoil surrounding the self-incrimination clause: why the Constitution does not forbid your silence from speaking volumes.

• Author: Gajiev, Zaur D.
• Position: Continuation of II. An Examination of the History Behind the Privilege Against Self-Incrimination H. The Common Law Privilege Becomes a Constitutional Right through VI. Conclusion, with footnotes, p. 256-281

Madison was the first to phrase the privilege against self-incrimination this way. (157) As the House of Representatives debated each of Madison's proposed amendments in turn, no debate took place concerning the self-incrimination clause. (158) Only one speaker, John Laurance--a Federalist lawyer and politician from New York (159)--moved to amend the self-incrimination clause to add "in any criminal case." (160) The Armais of Congress report:

Mr. Lawrence said this clause contained a general declaration, in some degree contrary to laws passed. He alluded to that part where a person shall not be compelled to give evidence against himself. He thought it ought to be confined to criminal cases, and moved an amendment for that purpose; which amendment being adopted, the clause as amended was unanimously agreed to by the committee.... (161)

Thus, the House adopted Laurance's amendment--apparently without discussion, not even by Madison. (162) The House then sent the amendments to the Senate, with the self-incrimination clause now reading: "No person shall ... be compelled in any criminal case, to be a witness against himself. (163) Although the amendments underwent further change in the Senate, the self-incrimination clause remained untouched. (164)

Subsequently, a joint resolution of Congress submitted a list of twelve constitutional amendments to the state legislatures for ratification. (165) By December 15, 1791, ten of the twelve amendments were ratified by the requisite number of states and became the first ten amendments to the U.S. Constitution--the Bill of Rights. (166) The Self-Incrimination Clause was embodied in the Fifth Amendment. (167) The English common law privilege against self-incrimination had transformed into a U.S. constitutional right, which guaranteed that "No person shall ... be compelled in any criminal case to be a witness against himself." (168)

Criminal Procedure in the Newly-Established United States

"[T]here is no indication ... that criminal procedure in America made an abrupt about face when [the privilege] was ratified as a fundamental right in the Fifth Amendment." (169)

Justices of the peace continued to conduct pre-trial examinations of suspects prior to trial. (170) Furthermore, despite their testimonial disqualification, virtually all criminal defendants spoke at both the pre-trial and trial stages of criminal proceedings, and juries naturally drew adverse inferences when defendants refused to speak. (171) However, defendants who refused to speak "suffered no more severe sanction than the drawing of an adverse inference." (172) As such, historically there was no indication these practices violated the Fifth Amendment. (173)

Beginning in 1864, Maine abolished the testimonial disqualification of criminal defendants, and other states gradually followed. (174) The rule was completely abolished in 1962 when Georgia became the final state to declare that criminal defendants were competent enough to testify under oath. (175) It was only after these abolitions that the concern arose regarding the propriety of prosecutors' adverse comments at trial on criminal defendants' refusal to testify under oath. (176)

Although several statutes have since prohibited such adverse comments, (177) there was widespread disagreement on the subject. (178) As late as 1953, the Uniform Rules of Evidence provided that "if an accused in a criminal action does not testify, counsel may comment upon accused's failure to testify, and the trier of fact may draw all reasonable inferences therefrom." (179) Notwithstanding the merits of disallowing adverse comments as a legislative policy, the Fifth Amendment's text and history fail to support a constitutional prohibition on such adverse comments. (180) Nor can it reasonably be stated that enacting statutes banning adverse comments "somehow created a 'revised' understanding of the Fifth Amendment." (181)

3. THE CURRENT SCOPE OF THE PRIVILEGE AGAINST SELF INCRIMINATION

   Since the adoption of the Bill of Rights, the Supreme Court has expanded the scope of the Self-Incrimination Clause beyond the literal meaning of its text. (182) Today, individuals can invoke the privilege in any proceeding in which testimony is legally required (183) if they reasonably believe their responses could be used against them in a criminal proceeding, or lead to evidence that may so be used. (184) Accordingly, individuals can invoke the privilege in federal and state civil court proceedings, (185) in criminal prosecutions, (186) and in proceedings before a grand jury, (187) legislative body, (188) or administrative agency. (189)

   Although courts may compel a person's testimony via a subpoena and punish noncompliance with contempt, (190) an individual who properly exercises the privilege may not be held in contempt for refusing to testify. (191) Validly asserting the privilege also precludes other official sanctions, such as the loss of public employment, (192) of a public license, (193) or of the right to do business with the state. (194) Furthermore, the privilege extends to circumstances in which there is no legal compulsion to speak, such as during police interrogations. (195) To invoke the privilege and receive these protections, a person must satisfy six general requirements.

   First, individuals can assert the privilege only if their responses will incriminate them in a criminal proceeding. (196) The privilege does not apply for responses that will subject the person to non-criminal liability, (197) harm to reputation, or infamy and disgrace. (198) Second, individuals can assert the privilege only when they are compelled to provide testimonial evidence. (199) Written, oral, and non-verbal communication is testimonial if its compulsion requires the person to reveal, directly or indirectly, the person's knowledge, consciousness, or "contents of his mind" about a particular fact or belief. (200) In other words, communication is testimonial if its compulsion places an individual into the "cruel trilemma" of having to choose between contempt, perjury, and self-incrimination. (201)

   The testimonial communication doctrine extends to the compulsion of an individual's physical actions if those actions will disclose the contents of the individual's mind, such as when producing subpoenaed documents will constitute the individual's tacit admission to the existence, authenticity, or possession of those documents. (202) Conversely, the privilege does not apply to the compulsion of non-testimonial physical acts, such as requiring a person in custody to stand or walk in a police lineup, speak prescribed words, model particular clothing, or give samples of handwriting, fingerprints, or blood. (203) The privilege also does not apply when "incriminating evidence may be the byproduct of obedience to a regulatory requirement," (204) such as requiring an individual to file an income tax return, (205) maintain required records, (206) or report an accident. (207)

   Third, the privilege is not self-executing. Individuals who want the privilege's protections must expressly claim it at the time they rely on it. (208) Otherwise, their responses are not considered to have been "compelled." (209) Furthermore, courts have the power to determine whether a person's fear of an incriminating response is in fact reasonable, and thus whether the person's assertion of the privilege is justified. (210) The Supreme Court has articulated two exceptions to the express invocation requirement--the privilege automatically applies to a criminal defendant at trial; additionally, it applies to suspects who make statements during custodial police interrogation in violation of Miranda as in those circumstances "governmental coercion makes [the] forfeiture of the privilege involuntary." (211)

   Fourth, the privilege is personal. (212) An individual cannot claim the privilege on behalf of another (213) or on behalf of an organization such as a corporation. (214) Fifth, individuals cannot invoke the privilege if they have been granted immunity from prosecution. (215) The Court has held that where the government grants a person immunity from criminal prosecution, the person can be compelled to testify and be punished for contempt if he or she refuses. (216) Under a grant of "use and derivative use" immunity, the government may not use an individual's compelled testimony or any information derived from that testimony in prosecuting the individual, (217) but may prosecute the individual using evidence wholly independent of the immunized testimony. (218)

   Finally, and most importantly, the privilege applies only against governmental compulsion of incriminating responses. (219) "By definition, a necessary element of compulsory self-incrimination is some kind of compulsion." (220) Thus, a person's voluntary statements absent governmental coercion are admissible against the person in a criminal proceeding. (221) Though the modern-day paradigm compelling a person's testimony is a court subpoena, (222) a person may also be compelled if "considering the totality of the circumstances, the free will of the witness was overborne." (223) For example, in Miranda v. Arizona, the Court held that compulsion is presumed in all custodial interrogations conducted in violation of the Miranda rules. (224) However, as Griffin demonstrates, the Court's interpretation of governmental compulsion has departed significantly from the traditional definition of compulsion under the Self-Incrimination Clause. (225)

4. DEVIATION FROM THE COMPULSION ANALYSIS CAUSES TURMOIL IN CONSTITUTIONAL INTERPRETATION

   In Michigan v. Tucker, the Supreme Court recognized the importance of considering the privilege's history in determining its scope:

   The importance of a right does not, by itself, determine its scope, and therefore we must continue to hark back to the historical origins of the privilege, particularly the evils at which it was to strike. The privilege against...