No person...shall be compelled in any criminal case to be a witness against himself....(1)
The Self-Incrimination Clause of the Fifth Amendment is an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights. From the beginning it lacked an easily identifiable rationale; in 1789, the words of the clause were more a slogan than a clearly defined legal rule, and in the preceding four centuries the slogan had stood for at least four different ideas.(2) Today, things are no better: the clause continues to confound and confuse. Because courts and commentators have been unable to deduce what the privilege is for, they have failed to define its scope in the most logical and sensible way. In this article we try our hand at solving the riddle and untying the Gordian knot. We propose both a rationale for, and a definition of the proper scope of, the Self-Incrimination Clause.
The Supreme Court's interpretation of the Fifth Amendment is currently in a jumbled transitional phase. The key question, though rarely recognized as such, is what sort of immunity the clause requires before a person may be made to tell all outside his own "criminal case," beyond the earshot of the petit jury. Over the years the answers have varied considerably. In its 1892 chestnut Counselman v. Hitchcock,(3) the Supreme Court required total ("transactional") immunity from prosecution whenever a person is compelled to testify against himself outside the courtroom. But in 1972, Kastigar v. United States(4) in effect overruled Counselman and established a new, narrower rule of "use plus use-fruits immunity": a person forced to speak pretrial may be prosecuted, but neither the compelled statement nor any evidence it led to ("fruits") can be introduced in the criminal trial. Kastigar provided no persuasive basis for stopping where it did in fashioning its new rule, and the Court is slowly - if not always consciously - chipping away at the foundations of the new rule, emphasizing the difference between testimony and physical evidence. In this article we argue that the time is ripe to take a decisive step in the direction the Court has been leaning: the Court should move beyond the way station of Kastigar and declare that a person's (perhaps unreliable) compelled pretrial statements can never be introduced against him in a criminal case but that reliable fruits of such statements virtually always can be. Thus, the government should be allowed to require a suspect to answer relevant questions in a civilized pretrial hearing presided over by a judge or magistrate. Under penalty of contempt, a suspect must answer truthfully, but he will be entitled to "testimonial immunity": that is, the compelled words will never be introduced over the defendant's objection in a criminal trial - the defendant will never be an involuntary "witness" against himself "in" a "criminal case" - but the fruits of these compelled pretrial words will generally be admissible.
This clean rule of testimonial immunity would openly vindicate the Court's recent emphasis on reliability as a preeminent criminal procedure value, but it has many other virtues as well. For starters, it has some important history on its side. Testimonial immunity, supported by English precedent, was the majority rule in America before Counselman and was explicitly endorsed by Congress at the time it adopted the Fourteenth Amendment, which reglossed the Bill of Rights and made its privileges and immunities applicable against the states. More importantly - as the long history of compelled self-incrimination is admittedly tangled - testimonial immunity makes the best sense of the words of the Fifth Amendment and kindred constitutional provisions, like those of the Sixth Amendment. Read our way, the words of the clause fit neatly together and tightly cohere with the rest of the Constitution. In short, our reading works, textually and functionally - no small thing in so muddy a field. Indeed, our proposal creates a rare win-win solution in criminal procedure: more guilty persons will be brought to book, while the plight of the truly innocent defendant will be improved.
Once we see the clear meaning of the rule against compelled self-incrimination - that self-incriminating words compelled from a defendant must be excluded from his criminal case - and the best reason underlying that rule - reliability - we can also see the independent roles that other rules must play, radiating from other clauses of the Constitution and motivated by other rationales. As we shall see, in both civil and criminal contexts, needlessly intrusive questioning, fishing expeditions, and offensive impositions upon a person's body raise obvious Fourth Amendment concerns; attempts to probe a citizen's mind for heresy or political incorrectness or a map of his inner life or conscience implicate the First Amendment; unregulated and lawless police behavior must be stamped out in the name of due process and the rule of law; and so on. By misreading - and often overreading - the scope and rationale of the Self-Incrimination Clause, courts and commentators have often obscured the proper role of other clauses, and so another happy side effect of our reading is that it yields a sensible division of labor among constitutional provisions.
The very breadth of the Self-Incrimination Clause, as currently construed, creates huge challenges, substantively and doctrinally, for this article. Substantively, we must note that an enormous amount of modern criminal law enforcement has been shaped by the Self-Incrimination Clause, as (mis)construed over the years. By narrowing government's ability to tap suspects as testimonial resources in civilized pretrial proceedings, the clause has driven some interrogation underground into less-than-civilized police station rooms and squad cars; has spurred on surprise searches, wiretaps, and other intrusions that fall outside the Fifth Amendment; has increased pressure to use "sting" operations and government informants, who often must be bribed in unappealing ways; and has ramified in countless other directions. A different reading of the Self-Incrimination Clause would likewise ripple out far and wide, and a single article cannot trace all these likely ripples with precision. On the other hand, the vast substantive significance of the Self-Incrimination Clause only deepens the puzzle of current doctrine and scholarship, which cannot persuasively explain what the clause means and why.
Doctrinally, the vastness of the Self-Incrimination Clause, sprawling across the U.S. Reports into a great many doctrinal corners and crevices, makes exposition difficult. It is hard to get one's hands on the beast, and there is no self-evidently superior way of organizing the multiheaded case law for exposition and analysis. In this article we have chosen the technique - call it a gimmick, if you like - of organizing our account around key words of the clause itself.(5) Each word can be used as a window onto a different cluster of doctrinal difficulties. Although these clusters might at first seem unconnected, by the end of this article we hope to pull them all together - to show how each cluster of current problems can be solved by the same elegant rereading of the Self-Incrimination Clause.
In Part I of this article, we examine the global puzzle of the Self-Incrimination Clause and the local confusion or perversion lurking behind virtually every key word and phrase in the clause as now construed. In Part II we elaborate our reading of the clause and show how it clears up the local problems and solves the overall puzzle.
Under current interpretations, courts cripple innocent defendants while the guilty wrap themselves in the clause and walk free. Modern understandings of the clause deviate far from its early American implementation, from plain meaning, and from common sense. The catalogue of interpretive difficulties is long: the privilege protects the wrong "person" - the guilty witness rather than the innocent defendant; courts struggle with impractical definitions of "compulsion"; what is excluded from "any criminal case" by grants of immunity has fluctuated widely over the years; and reliable physical fruit, such as a bloody knife or a dead body, is now excluded because it is "witnessing" against oneself, while other reliable physical evidence (the defendant's own blood, for example) is allowed because it is not testimonial. In short, virtually every word and phrase - person, compelled, in any criminal case, and witness - sits atop considerable confusion or perversion because courts do not yet understand how the words fit together, or what big idea(s) might underlie the clause.
Perhaps the most striking flaw in current application of the privilege is that in some important cases defendants are not helped but harmed. And worse: the privilege seems perversely designed to aid the guilty defendant while punishing the innocent one. Indeed, an overbroad reading of the privilege ends up undercutting the most basic of all criminal procedure rights - the right of an innocent defendant to mount a truthful defense.
Begin with the following question: Does the Self-Incrimination Clause prevent a "person" in a criminal case from being compelled to testify against himself even when that person is not on trial but only a witness? Today the answer is yes. As a result, the Fifth Amendment prevents an innocent defendant from compelling self-incriminating testimony from a guilty witness. But this invocation of the Fifth Amendment by the witness denies the accused her explicit Sixth Amendment right "to have compulsory process for obtaining witnesses in [her] favor."(6) The Fifth and Sixth Amendments seem to be at war with one another, and the Fifth Amendment rights of a witness apparently trump the Sixth Amendment rights of the defendant, even though the defendant is of course...