CHAPTER 12 THE PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION: ISSUES IN ADJUDICATION

• Jurisdiction: United States

Chapter 12 THE PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION: ISSUES IN ADJUDICATION

§ 12.01 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 system. As the title of this chapter suggests, however, the primary focus here is on the role of the Fifth Amendment privilege in the criminal adjudication process. The role of the Fifth Amendment in police interrogation law is considered in the first volume of this treatise.

There is an enormous body of case law and scholarly literature in the field. Unfortunately, as one writer observed, "[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, 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 three specific issues in adjudication. Those three issues are: the prosecution's ability to overcome the privilege and force testimony by providing immunity, the force of the privilege in resisting a subpoena to produce documents (so-called "act-of-production immunity"), and the use of the defendant's silence — of his decision to exercise the privilege — at his trial.

§ 12.02 THE ORIGINS OF THE PRIVILEGE AGAINST SELF-INCRIMINATION⁷

The origins of the Fifth Amendment Self-Incrimination Clause "lie in a tangled web of obscure historical events."⁸ According to Wigmore, the roots of the Fifth Amendment privilege against self-incrimination lie in a twelfth century power struggle between the Crown and the Church.⁹ Leonard Levy, however, believes that this reading of history is too narrow, and that the privilege is also the result of political, constitutional, and human-rights debates that racked England during the sixteenth and seventeenth centuries.¹⁰

What seems fairly clear is that the concept of a right against self-incrimination had "become a significant feature of the common law [by] Coke's time,"¹¹ i.e., the early 17th Century, as judges sought to limit inquisitorial interrogations conducted in the ecclesiastical courts, which investigated claims of heresy, and by the Court of Star Chamber. Under then-existing procedures, a person "could be plucked from the street,"¹² often on nothing more than a "fishing expedition[]" by an ecclesiastical court,¹³ and administered an "oath ex officio," which required the individual to answer truthfully all questions put to him by the court, even before he was informed of the nature of any charges eventually leveled against him.

The oath ex officio was abolished in 1641. Gradually, according to traditional historical accounts, opposition to the oath turned into a general rejection of the perceived "unjust, unnatural, and immoral"¹⁴ inquisitorial requirement that persons furnish evidence to convict themselves of crimes. Thus, Blackstone reported that, "at the common law, nemo tenebatur prodere seipsum [no man is bound to accuse himself]; and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men."¹⁵

This English opposition to compulsory self-accusation was imported to this country by colonists, who were ardent critics of the ecclesiastical oaths. Over time, the colonies enacted laws that prohibited the oath ex officio, as well as the use of torture to obtain confessions. By the time of the Revolution, according to Levy, the privilege was viewed by the Constitution's framers as "a self-evident truth."¹⁶

The preceding summary represents the traditional explanation of the origins of the Fifth Amendment privilege. A somewhat different historical account suggests that the Fifth Amendment privilege has less to do with the heroic battles for religious and human freedom of those earlier centuries than previously thought. According to a revisionist view, "the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel."¹⁷

According to this reading of history, the criminal procedure of the sixteenth and seventeenth centuries consisted of "a set of rules and practices whose purpose and effect were to oblige the accused to respond to the charges against him."¹⁸ In this period, the "bedrock" principle was that a person accused of crime not only was not furnished a lawyer, but was forbidden to have one. Indeed, during this period, "[t]he essential purpose of the criminal trial was to afford the accused an opportunity to reply in person to the charges against him."¹⁹ The view was that a defendant did not need counsel because, if he was innocent, "he will be as effective as any lawyer"²⁰ in explaining his case; and if he was guilty, "the very Speech, Gesture, and Countenance . . . may often help disclose the Truth . . . ."²¹

The bar on defense counsel was relaxed in 1696 in treason prosecutions. By the 1730s, defense counsel was permitted in ordinary criminal trials.²² And with the advent of defense counsel, as Professor John Langbein has put it, the criminal process shifted from an "accused speaks" trial to a "testing the prosecution" form of trial. According to this reading of history,

[c]ounsel . . . turned a system directed at getting the defendant to attempt rebuttal of the adverse evidence into one in which the prosecutor was expected to prove his case, beyond a reasonable doubt, in the face of a learnedly uncooperative defense. This reversal of the nature of the criminal trial had as one of its consequences the creation of a right against coercive self-incrimination; it replaced a system in which . . . self-incrimination was the whole point.²³

This historical interpretation adds to our understanding of the Fifth Amendment privilege. Nonetheless, one should not minimize the significance of the earlier battles for religious and human freedom because, as a result of them, "compulsory examination of the accused . . . acquired a bad name."²⁴ As a result of this English history, American courts, including the United States Supreme Court especially during the middle of the twentieth century, came to view the self-incrimination privilege as a highly valued right, if not a self-evident truth.

§ 12.03 IS THE PRIVILEGE A GOOD IDEA? THE CONTROVERSY²⁵

[A] In General

The Fifth Amendment Self-Incrimination Clause is exceptionally controversial. Professor Stephen Schulhofer describes the 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.' "²⁹ Yet, 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? 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 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...