Epilogue

• Library: The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.)

Epilogue

Although this book is filled with cases concerning the application of the Fifth Amendment Self-Incrimination Clause in various settings, the right against self-incrimination is in decline. Its decline is partially the result of a shift in the Supreme Court's interpretation of the clause. Since reaching a high-water mark during the Warren Court—culminating in the exclusionary rule created by Miranda v. Arizona—subsequent decisions have typically reduced the scope and power of the clause. For instance, the Fifth Amendment's historical protection of the incriminating contents of private papers has been replaced by a narrow protection only for the incriminating aspects of document production, which, in turn, is limited by the "foregone conclusion" doctrine and the required record exception. Further, the Court's recent decision in Salinas v. Texas—allowing the prosecution to argue that silence in the face of law enforcement questioning equals guilt—is a substantial retreat from the rule of Griffin v. California that a prosecutor cannot comment on a defendant's decision not to testify at his own trial. And the Court's decision in Chavez v. Martinez, that there is no violation of the Fifth Amendment unless and until compelled self-incriminating statements are used against the defendant at his criminal trial, appears intended to restrict the Court's historic practice of upholding Fifth Amendment objections to the compelled making of incriminating statements alone. Indeed, Chavez would appear to allow the government to use evidence derived from compelled self-incriminating testimony without limitation, thereby rendering use and derivative use immunity—as the price the government must pay to eliminate a person's Fifth Amendment right—obsolete.

Supreme Court decisions are only part of the story of the reduced relevance of the Fifth Amendment, however. Advances in science and technology, which enhance the ability of law enforcement to convict other than by compelling a suspect to self-incriminate, are equally important. For instance, Americans increasingly rely on devices that store the date, time, and place of our activities and the contents of our communications—often all the information that is necessary to commence a prosecution. Currently, those devices are accessible through a memory-based code or personal identification number, which the police arguably cannot compel individuals to provide under the Fifth Amendment. But increasingly, manufacturers are...