Right Against Self-Incrimination

• Author: Leonard W. Levy
• Pages: 2232-2239

Page 2232

The Fifth Amendment is virtually synonymous with the right against self-incrimination. One who "pleads the Fifth" is not insisting on grand jury INDICTMENT, freedom from DOUBLE JEOPARDY, or JUST COMPENSATION for property taken by the government?all safeguarded in the same amendment. He is saying that he will not reply to an official query because his truthful answer might expose him to criminal jeopardy. He seems to be saying that he has something to hide, making the Fifth appear to be a protection of the guilty; it is, but probably no more so than other rights of the criminally accused. The right against self-incrimination is the most misunderstood, unrespected, and controversial of all constitutional rights.

Its very name is a problem. It is customarily referred to as "the privilege" against self-incrimination, following the usage of lawyers in discussing evidentiary privileges (for example, the husband-wife privilege, the attorney-client privilege). Popular usage, however, contrasts "privilege" with "rights," and the Fifth Amendment's clause on self-incrimination creates a constitutional right with the same status as other rights. Its "name" is unknown to the Constitution, whose words cover more than merely a right or privilege against self-incrimination: "no person ? shall be compelled in any criminal case to be a witness against himself." What does the text mean?

The protection of the clause extends only to natural persons, not organizations like corporations or unions. A member of an organization cannot claim its benefits if the inquiry would incriminate the organization but not him personally. He can claim its benefits only for himself, not for others. The text also suggests that a prime purpose of the clause is to protect against government coercion; one may voluntarily answer any incriminating question or confess to any crime?subject to the requirements for WAIVER OF CONSTITUTIONAL RIGHTS. In some respects the text is broad, because a person can be a witness against himself in ways that do not incriminate him. He can, in a criminal case, injure his civil interests or disgrace himself in the public mind. Thus the Fifth can be construed on its face to protect against disclosures that expose one to either civil liability or INFAMY. The Fifth can also be construed to apply to an ordinary witness as well as the criminal defendant himself. In Virginia, where the right against self-incrimination first received constitutional status, it appeared in a paragraph relating to the accused only. The Fifth Amendment is not similarly restrictive, unlike the Sixth Amendment which explicitly refers to the accused, protecting him alone. The location of the clause in the Fifth, rather than in the Sixth, and its reference to "no person" makes it applicable to witnesses as well as to the accused.

On the other hand, the clause has a distinctively limiting factor: it is restricted on its face to criminal cases. The phrase "criminal case" seems to exclude civil cases. Some judges have argued that no criminal case exists until a formal charge has been made against the accused. Under such an interpretation the right would have no existence until the accused is put on trial; before that, when he is taken into custody, interrogated by the police, or examined by a GRAND JURY, he would not have the benefit of the right. Nor would he have its benefit in a nonjudicial proceeding such as a LEGISLATIVE INVESTIGATION or an administrative hearing. The Supreme Court has given the impression that the clause, if taken literally, would be so restricted; but the Court refuses to take the clause literally. Thus, in COUNSELMAN V. HITCHCOCK (1892), the Court held that the Fifth does protect ordinary witnesses, even in federal grand jury proceedings. Unanimously the Court declared, "It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself." Although the Court did not explain why it was "impossible," the Court was right. Had the framers

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of the Fifth intended the literal, restrictive meaning, their constitutional provision would have been a meaningless gesture. There was no need to protect the accused at his trial; he was not permitted to give testimony, whether for or against himself, at the time of the framing of the Fifth. Making the criminal defendant competent to be a witness in his own case was a reform of the later nineteenth century, beginning in the state courts with Maine in 1864, in the federal courts by an act of Congress in 1878.

Illumination from the face of a text that does not mean what it says is necessarily faint. Occasionally the Court will display its wretched knowledge of history in an effort to explain the right against self incrimination. Justice FELIX FRANKFURTER for the Court, in ULLMANN V. UNITED STATES (1956), drew lessons from the "name" of "the privilege against self-incrimination," but conceded that it is a provision of the Constitution "of which it is peculiarly true that "a page of history is worth a volume of logic." TWINING V. NEW JERSEY (1908), the most historically minded opinion ever delivered for the Court on the right, was misleading and shallow when it was not inaccurate on the question whether the right was "a fundamental principle of liberty and justice which inheres in the very idea of free government."

The American origins of the right derive largely from the inherited English COMMON LAW system of criminal justice. But the English origins, so much more complex, spill over legal boundaries and reflect the many-sided religious, political, and constitutional issues that racked England during the sixteenth and seventeenth centuries: the struggles between Anglicanism and Puritanism, between Parliament and king, between limited government and arbitrary rule, and between freedom of conscience and suppression of heresy and SEDITION. Even within the more immediate confines of law, the history of the right against self-incrimination is enmeshed in broad issues: the contests for supremacy between the accusatory and the inquisitional systems of procedure, the common law and the royal prerogative, and the common law and its canon and civil law rivals. Against this broad background the origins of the concept that "no man is bound to accuse himself" (nemo tenetur seipsum accusare) must be understood and the concept's legal development traced.

The right against self-incrimination originated as an indirect product of the common law's accusatory system and of its opposition to rival systems which employed inquisitorial procedures. Toward the close of the sixteenth century, just before the concept first appeared in England on a sustained basis, all courts of criminal jurisdiction habitually sought to exact self-incriminatory admissions from persons suspected of or charged with crime. Although defendants in crown cases suffered from this and many other harsh procedures, even in common law courts, the accusatory system afforded a degree of fair play not available under the inquisitional system. Moreover, torture was never sanctioned by the common law, although it was employed as an instrument of royal prerogative until 1641.

By contrast, torture for the purpose of detecting crime and inducing confession was regularly authorized by the Roman codes of the canon and civil law. "Abandon all hope, ye who enter here" well describes the chances of an accused person under inquisitorial procedures characterized by PRESENTMENT based on mere rumor or suspicion, indefiniteness of accusation, the oath ex officio, secrecy, lack of CONFRONTATION, coerced confessions, and magistrates acting as accusers and prosecutors as well as "judges." This system of procedure, by which heresy was most efficiently combated, was introduced into England by ecclesiastical courts.

The use of the oath ex officio by prerogative courts, particularly by the ecclesiastical Court of High Commission, which Elizabeth I reconstituted, resulted in the defensive claim that "no man is bound to accuse himself." The High Commission, an instrument of the Crown for maintaining religious uniformity under the Anglican establishment, used the canon law inquisitorial process, but made the oath ex officio, rather than torture, the crux of its procedure. Men suspected of "heretical opinions," "seditious books," or "conspiracies" were summoned before the High Commission without being informed of the accusation against them or the identity of their accusers. Denied DUE PROCESS OF LAW by common law standards, suspects were required to take an oath to answer truthfully to interrogatories which sought to establish guilt for crimes neither charged nor disclosed.

A nonconformist victim of the High Commission found himself thrust between hammer and anvil: refusal to take the oath or, having taken it, refusal to answer the interrogatories meant a sentence for contempt and invited Star Chamber proceedings; to take the oath and respond truthfully to questioning often meant to convict oneself of religious or political crimes and, moreover, to supply evidence against nonconformist accomplices; to take the oath and then lie meant to sin against the Scriptures and risk conviction for perjury. Common lawyers of the Puritan party developed the daring argument that the oath, although sanctioned by the Crown, was unconstitutional because it violated MAGNA CARTA, which limited even the royal prerogative.

The argument had...