Introduction

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

Introduction

The U.S. Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. While this portion of the Fifth Amendment, most often referred to as the "privilege against self-incrimination," contains only 15 words, its application can be deceptively complex. The clause has generally defied a comprehensive theoretical justification and, instead, has been aptly described as "an unsolved riddle of vast proportions, a Gordian Knot in the middle of our Bill of Rights." See Akhil Reed Amar and Renee B. Lettow, Fifth Amendment First Principles: The Self-incrimination Clause, 93 Mich. L. Rev. 857 (1995). Application of the Fifth Amendment right against self-incrimination is dependent on the factual setting in which the privilege is asserted, with the values served by the privilege often balanced against the competing interests at stake.

This book is designed primarily to elucidate the contours of the Fifth Amendment privilege against self-incrimination in practice and to provide a guide for both the civil litigator who may confront the privilege infrequently as well as the criminal lawyer who seeks to advance his or her client's interests through creative application of the Fifth Amendment. The book makes no attempt to harmonize the often disparate and sometimes contradictory interpretations of the privilege and is not intended to advance an argument for one interpretation versus a competing interpretation. Rather, it attempts to organize and explain the relevant case law so that lawyers may more effectively advise and represent their clients. It is intended to be a starting point for lawyers (and for interested clients), but not the last word on any of the issues addressed.

Many fundamental issues raised by the Self-Incrimination Clause remain unsettled. The separate discussion in Chapter 2 of McKune v. Lile, 536 U.S. 24 (2002), for instance, is intended to highlight the degree to which issues relating to the definition of the word "compelled" remain subject to debate. Similarly, we expand in Chapter 2 of this book our discussion of the implications of Chavez v. Martinez, 538 U.S. 760 (2003), where the Supreme Court ruled that the Self-Incrimination Clause is not violated unless and until a person's compelled self-incriminating testimony is actually used against him in a criminal case.

The privilege against self-incrimination may be asserted whenever the speaker reasonably fears...