§ 23.01 FIFTH AMENDMENT SELF-INCRIMINATION CLAUSE: OVERVIEW

• Jurisdiction: United States

§ 23.01. Fifth Amendment Self-incrimination Clause: Overview

The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . ." The privilege — often called, in shorthand, "the Fifth Amendment privilege" or "Fifth Amendment privilege against self-incrimination," but which is more accurately characterized as the "Fifth Amendment privilege against compelled self-incrimination"—applies to the states through the Fourteenth Amendment Due Process Clause.¹

Generally speaking, the privilege may be asserted in any proceeding, civil or criminal, formal or informal, if the testimonial evidence that would be produced there might incriminate the speaker in a criminal proceeding.² Consequently, legal issues regarding the self-incrimination privilege arise throughout the legal process. As the title of this chapter suggests, however, the primary focus here will be on the role of the Fifth Amendment privilege in the police interrogation context. Other aspects of the Fifth Amendment provision are considered in the second volume of this treatise.

There is an enormous body of case law and scholarly literature in the field. According to one observer, "[t]he privilege against self-incrimination is much discussed but little understood."³ It is "unlikely that anyone could argue persuasively that . . . the elements of fifth amendment law . . . fit neatly into an internally consistent, sensible whole."⁴ Indeed, some consider the Fifth Amendment privilege "an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights."⁵ It is "a mandate in search of a meaning."⁶

Because of the complexity and importance of the Fifth Amendment privilege against compelled self-incrimination in American law, and in order to more fully appreciate its role in shaping police interrogation procedures, this chapter touches on the history of, the policies underlying, and the general contours of, the privilege against compulsory self-incrimination before turning directly to interrogation law.

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Notes:

^[1] Malloy v. Hogan, 378 U.S. 1 (1964).

^[2] Lefkowitz v. Turley, 414 U.S. 70 (1973).

^[3] Robert B. McKay, Self-Incrimination and the New Privacy, 1967 Sup. Ct. Rev. 193, 193.

^[4]...