Self-incrimination and the Constitution: a brief rejoinder to Professor Kamisar.

Author:Amar, Akhil Reed
Position:Response to article by Yale Kamisar in this issue, p. 929

Professor Yale Kamisar has been writing in the field of criminal procedure for many years, and we are grateful that he has chosen to respond to our ideas. At the outset of his long and lively response to Fifth Amendment First Principles,(1) Professor Kamisar promises to analyze our constitutional argument, with "special attention" to "current doctrines or trends."(2) But in what follows, he offers almost no analysis of, well, the Constitution - its text, its history, its structure. We believe that constitutional law should, ideally, bear some relation to, well, the Constitution. Professor Kamisar, it seems, does not. He also sidesteps most of our main points.

Begin with the constitutional text. When John Doe is obliged - under pain of contempt - to testify before Congress, or in a civil case, the Fifth Amendment has not (yet) been violated: it applies only to a criminal case. If Doe's congressional, or civil, testimony is never introduced as evidence in a criminal case, the Amendment, on our plain meaning reading, once again has never been violated: Doe has never been made an involuntary witness against himself in a criminal case. When Congress or a civil court compels testimony, this is generally not cruel, or barbarous, or uncivilized - or unconstitutional. There is no poisonous tree here and thus no constitutional basis for excluding its "fruit." Kastigar(3) is thus wrong. This plain textual argument has considerable support in American and English history, in the language and spirit of kindred constitutional clauses, and in more general principles of constitutional structure. It also solves many practical problems in current doctrine, and resonates with a deeply rooted moral and constitutional norm that innocent defendants be protected against erroneous convictions based on unreliable evidence.

Professor Kamisar never squarely engages these constitutional arguments. He begins his analysis not in civil courtrooms or congressional hearings, but in police stations.(4) But, as we were at pains to say in our article, these proceedings are very different. Rogue police can be cruel, barbarous, and uncivilized. Abusive actions in police stations, squad cars, and crime scenes are themselves unconstitutional - they are paradigmatic unreasonable searches and seizures under the Fourth Amendment. But, if a defendant's coerced "confession" - witnessing - is never introduced in a criminal case, the Fifth Amendment, on our reading, is not violated.(5) What's more - and this is a separate point - the Fourth...

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