§ 23.03 Is the Privilege a Good Idea? The Controversy
| Jurisdiction | United States |
[A] In General
Professor Stephen Schulhofer describes the Fifth Amendment Self-Incrimination Clause as "probably our most schizophrenic amendment."26 On the one hand, the Supreme Court, particularly during the Warren Court era, "waxed eloquent"27 about the privilege, stating that it "reflects many of our fundamental values and most noble aspirations,"28 and that it "registers an important advance in the development of our liberty — "one of the great landmarks in man's struggle to make himself civilized."29Yet, the Supreme Court, per Justice Benjamin Cardozo, once observed that "[j]ustice . . . would not perish if the accused were subject to a duty to respond to orderly inquiry."30
Among scholars, too, the privilege has had its eloquent advocates,31 but it has also been the object of withering criticism. Early on, Wigmore described it as a "mark of traditional sentimentality."32 Jeremy Bentham sought to trivialize the privilege by claiming that it was based on "the old woman's reason" that "tis hard upon a man to be obliged to criminate himself."33 Modern scholars, if anything, have been even more critical. One of them has concluded that "the leading . . . efforts to justify the privilege as more than a historical relic are uniformly unsatisfactory."34 Professor Schulhofer, only exaggerating a bit, has stated that "[i]t is hard to find anyone these days who is willing to justify and defend the privilege against self-incrimination."35
In view of these disparate observations, the question must be asked: Is the privilege against compelled self-incrimination defensible? Some of the arguments pertaining to the privilege relate to its invocation at trial; other arguments apply with as much force in the pretrial, police interrogation context that is primary focus of this chapter. What follows is a taste of the arguments in defense of, and against, the Fifth Amendment privilege against compelled self-incrimination. However, it should be noted that even if the privilege is abstractly indefensible as some critics maintain, few people seriously suggest that it should now be abolished by constitutional amendment. As one writer has pointed out, "one does not, when he performs the surgery on one part of the body, do it without regard for the impact on other parts of the body."36 Professor David Dolinko, a critic of the rule, has observed that "[a] rule whose existence lacks any principled justification may nevertheless come to serve important functions in the legal system as a whole, so that its repeal would do violence to the entire system."37
[B] The Modern Debate
[1] The "Cruel Trilemma" Thesis
What the defenders of the privilege say: The Fifth Amendment privilege "[a]t its core, . . . reflects our fierce unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt."38 That is, if there were no privilege against self-incrimination, a person could be forced (as he was in the ecclesiastical courts and the Star Chamber) to testify under oath and either admit the truth, which could result in punishment, lie under oath (and thus be subjected to punishment for perjury), or be held in contempt of court for failing to answer the questions (and thus be jailed on the latter charge).
Response: It is hardly self-evident that it is cruel to require a guilty person to admit her guilt or accept the consequences of her refusal to testify truthfully. In any case, this "cruelty" is far less so than many other "cruelties" the law uncontroversially allows. A person in a civil proceeding, for example, may be compelled to provide damaging answers to questions in discovery and on a witness stand, yet nobody considers this too cruel to permit. Perhaps more to the point, a parent may be compelled to testify at a criminal trial against her child, under penalty of contempt, even though her testimony will send a loved one to prison or even Death Row. To require "a mother . . . to testify against her son and send him to the gallows"39 is surely an example of greater psychological cruelty than requiring a criminal defendant to testify at trial regarding her own alleged violation of a relatively minor offense.
Beyond this, to the extent that the Fifth Amendment privilege is justified on the grounds of the "cruel trilemma," it benefits only the guilty. The "innocent defendant faces no trilemma, no dilemma, in fact no problem at all."40 She simply tells the truth.41 Why should the Constitution provide a special privilege to the guilty?
[2] Compelled Self-Accusation as a Moral Wrong
What the defenders of the privilege say: The Fifth Amendment privilege is founded on deep moral principles supporting the right of persons to a "special zone of mental privacy,"42 human dignity, and personal autonomy. "Self-incrimination is both self-harming and self-accusing. . . . [T]he sovereign intrudes on a narrow autonomous sphere when it encourages self-harming self-accusation."43 Society rightly "hesitate[s] to say that someone has a moral duty to bring conviction and imprisonment upon himself."44 Most especially, the "government impermissibly disrespects a person when it uses him as the means of his own destruction,"45 when it "subordinates a person to the state [by using] . . . her private thoughts as the active means of her own destruction."46
Even if an admission of guilt is in the wrongdoer's best interests, the decision to admit culpability should be one's own: "[A]n individual ought to be autonomous in his efforts to come to terms in his own conscience with accusations of wrongdoing against him."47 Our society properly has "respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life.'"48
Response: First, the privilege is morally counterintuitive: "No parent would teach such a doctrine to his children; the lesson parents preach is that while a misdeed . . . will generally be forgiven, a failure to make a clean breast of it will not be."49
Second, civil litigants and witnesses, for example in divorce proceedings, may be required to testify to highly embarrassing — and damaging — facts and intensely personal aspects of their lives, yet the privilege does not apply in such circumstances. Third, the government can avoid the obstacles of the Fifth Amendment by giving immunity to a witness,50 in which case she can be compelled to testify about matters that she considers to be part of her...
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