The self-incrimination clause explained and its future predicted.

AuthorAllen, Ronald J.

Constitutional theorizing is a tricky business. The document is ancient, contains many provisions directed toward discrete problems that have little modern salience, and frequently contains vague and capacious language that defies straightforward theoretical development. On occasion, as with the Fourth Amendment, all three symptoms may be present, making theorizing a largely futile endeavor. (1) The Self-Incrimination Clause of the Fifth Amendment suffers from at least two of these three problems. It is ancient and was written to eliminate specific abuses of authority that have no close modern analogues; (2) indeed, the most unproblematic application of the right against self-incrimination today is to custodial interrogation by the police, a practice that did not even exist when the Fifth Amendment was ratified. (3) Even though the language of the Fifth Amendment (which henceforth we use interchangeably with "Self-Incrimination Clause") is more constraining than that of the Fourth, given the evolution of its practical significance, perhaps it is not surprising that the theoretical foundations of the Fifth Amendment are conventionally thought to be in disarray. In its efforts to explain the Fifth Amendment, the Supreme Court has relied on stirring rhetoric that may move the heart but leaves the intellect unconvinced. According to the Court:

It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent. (4) The "fundamental values" enumerated in the quoted passage are striking in their vacuity and circularity. To take just a few examples: an innocent person faces no trilemma; there is no simple dichotomy between accusatorial and inquisitorial regimes; never has the government had to "shoulder the entire load"; far from "human personality" being "inviolable," law molds and shapes "human personality" directly, constantly and unavoidably; and immunity permits the most private aspects of a person's life to be divulged, as occurs in criminal and civil cases daily across the land. These observations are not new. (5) Even Justice Goldberg, the author of the paragraph above, observed that the Self-Incrimination Clause is "regarded as so fundamental a part of our constitutional fabric, despite the fact that 'the law and the lawyers ... have never made up their minds just what it is supposed to do or just whom it is intended to protect.'" (6)

This conceptual ambiguity has not escaped scholars and has led to a proliferation of scholarly emendations to the Court's explanations that uniformly fail to convince. (7) Amar and Lettow wrote, "[t]he 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." (8) William Stuntz summed it up: "It is probably fair to say that most people familiar with the doctrine surrounding the privilege against self-incrimination believe that it cannot be squared with any rational theory." (9)

But there is an ambiguity in the word "theory" threaded through the various judicial and scholarly treatments of the Fifth Amendment. It sometimes is used to refer to the justification of a practice, which is the sense in which Justice Goldberg was theorizing. At other times it is used to predict or prescribe the scope or limitations of governmental power on the one hand, or privacy, autonomy, and dignity interests of citizens on the other. Some of the theoretical difficulties infecting the Fifth Amendment may result from failing to sort out these different perspectives. To be sure, one reasonably may think that the theoretical justification for a practice must constrain its scope. Interestingly, the Fifth Amendment offers a counter-example to such a belief, which is the main burden of this article. While its justification is, we agree, hopelessly muddled, the scope of the Fifth Amendment (its implications in the real world for government/citizen interactions) can be specified quite clearly. In other words, while there is no general theoretical justification for the Fifth Amendment, there is a powerfully explanatory positive theory. Moreover, we can specify precisely where ambiguity remains, and the possible directions that future developments might take--indeed, must take, given what the Court has done to date. It is unclear which path the Court may choose, but it is apparent which paths remain open. In this respect, the Court's treatment of the Self-Incrimination Clause may mirror its treatment of the Fourth Amendment. (10) Both may defy general justificatory theories, yet both lead to relatively predictable results. This, in turn, may have implications for the nature and utility of some forms of legal scholarship, a point we return to at the conclusion of this article.

Although discussion of abstract values can still be found occasionally in its opinions, (11) the Supreme Court has shifted to a formal approach to the Fifth Amendment. (12) The Self-Incrimination Clause states that no person "shall be compelled in any criminal case to be a witness against himself." (13) Under what Lance Cole described as "Fisher's new textualist analytical approach," (14) the Court has concluded that Fifth Amendment violations must contain three elements: compulsion, incrimination, and testimony. (15) Testimony, however, has never been defined clearly and is the source of the remaining unpredictability in the future of the Fifth Amendment. Although never acknowledged by the Court, its cases make plain that "testimony" is the substantive content of cognition--the propositions with truth-value that people hold or generate (as distinct from the ability to hold or generate propositions with truth-value). (16)

This observation leads to a comprehensive positive theory of the Fifth Amendment right: the government may not compel disclosure of the incriminating substantive results of cognition that themselves (the substantive results) are the product of state action. As we demonstrate in this article, this theory explains all of the cases, a feat not accomplished under any other scholarly or judicial theory. As we develop below, it even explains the most obvious datum that might be advanced against it--the sixth birthday question in Muniz. (17)

As we also elaborate below, there remain two sources of ambiguity in Fifth Amendment adjudications. First, compulsion and incrimination are both continuous variables questions of degree. The Court has recognized this and set about defining the amount of compulsion and incrimination necessary to a Fifth Amendment violation. The result is a common law of both elements rather than a precise metric of either. The two variables are independent and do not interact, which reduces the complexity of decision-making. Compulsion, in other words, is in no way determined by the extent to which the results are incriminating. Compulsion is determined on its own, as is the sufficiency of incrimination.

The second source of ambiguity arises from the Court's failure to equate "testimony" with cognition explicitly, though that is precisely what has controlled its decisions. Given that the Court's opinions have not focused on substantive cognition as the third element of a Fifth Amendment violation, it is not surprising that the Court has not clarified whether cognition, too, is a continuous or discontinuous variable. This is where the future lies. The Court will have to clarify two matters: first, whether the extent of cognition matters, and second, the derivative consequences of cognition. In addition, the Court will have to determine whether these two issues are, like compulsion and incrimination, independent. Does the extensiveness of the compelled cognition determine how far its causal effects will be traced?

Part I presents our positive theory of the Fifth Amendment through an examination of the three variables that constitute it. Of course, a positive theory is not normative or justificatory, and to be clear, we largely leave such inquiry to others. In Part II, we elaborate on the ambiguity introduced into Fifth Amendment adjudications by the Court's recent decision in United States v. Hubbell. (18) We show that in Hubbell the Court veered sharply from the apparent course set by Fisher v. United States (19) by recognizing a dramatically different role for cognition and its consequences. In Fisher, though compelled cognition itself was protected, law enforcement had ready access to the incriminating information derived therefrom. In Hubbell, by inflating derivative use immunity to previously unseen proportions, the Court expanded the scope of protection.

After Hubbell, there are three possibilities for the future of the privilege against self-incrimination, which Part III explores: (1) the Court will view Hubbell as a mere bump in the road past which the Fisher line of cases will continue, ultimately ignoring the new approach with which Hubbell flirted; (2) Hubbell will be followed to its natural end in an expansive derivative use doctrine triggered by any compelled cognition; or (3) the Court will constrain derivative use and...

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