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This is a preliminary draft, not to be quoted without
permission of author
The 5th Amendment in the Age of Terrorism: Do We Still Have the
Right to Remain Silent?
by Alan M. Dershowitz
Introduction .......................................................................................... 2
What is the Right Against Self-Incrimination? ................................ 4
The Different Meanings of the Fifth ................................................ 9
The Supreme Court’s Recent Decision .......................................... 14
Chapter 1: The Limits of Textual Analysis in Constitutional
Interpretation ...................................................................................... 31
Chapter 2: The limits of precedent: Which way does “immunity” cut?
............................................................................................................ 44
The immunity precedent and analogy ............................................ 44
Chapter 3: The Limits of Historical Inquiry....................................... 61
The Earliest History of the Right Against Self-Incrimination ....... 68
The Levy Hypothesis ..................................................................... 73
The Langbein Hypothesis ............................................................... 79
Ships Passing in the Night .............................................................. 81
The Marbury and Burr Precedent ................................................... 96
Historical conclusions .................................................................. 101
The Privilege as Symbol .............................................................. 109
Rights as Specific Limitations on Particular Governmental Actions
Versus Rights as General Guides to Governance ......................... 122
Should Any Provisions of the Constitution be Interpreted
Symbolically? ............................................................................... 129
Our Accidental Constitution......................................................... 134
A Functional Analysis of the Constitutional Right Against Selfincrimination ................................................................................ 138
A Matter of Interpretation ............................................................ 141
Policy Considerations ................................................................... 146
Deconstructing the privilege against self-incrimination .............. 146
An Anti-disestablishmentarian Defense of the 5th Amendment ... 155
Broader Trends ............................................................................. 159
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Introduction
“You have the right to remain silent.” It’s probably the best
known phrase ever to emanate from our Constitution. Every school
child, movie goer and TV watcher knows that the Bill of Rights, most
particularly the Fifth Amendment, grants every American the right to
remain silent. The Supreme Court, in a foundational case applying
the privilege against self-incrimination to the states, defined its core
as “the right of a person to remain silent unless he chooses to speak in
the unfettered exercise of his own will….”1 In reaffirming the
constitutional status of the Miranda decision in 2000, the late Chief
Justice William Rehnquist observed that the Miranda warnings—
which begin with the categorical statement that “you have the right to
remain silent”—have “become part of our national culture.”2 He was
correct, as evidenced by one of the most reliable barometers of
contemporary American culture, Jerry Seinfeld:
Aren’t you a little surprised that cops still have to read that
whole “You have the right to remain silent” speech to every
criminal they arrest? I mean is there anybody who doesn’t
know that by now? Can’t they just go, “Freeze, you’re under
arrest. You ever seen Baretta?”
“Yeah.”
“Good, get in the car.”3
Justice Scalia agreed with Seinfeld that “[i]n the modern age of
frequently dramatized ‘Miranda’ warnings, [it] is implausible” that a
“person under investigation may be unaware of his right to remain
silent….”4
But do Americans actually have the right that police officers
are constitutionally obliged to tell them they have? Not according to
a recent Supreme Court decision, largely unnoticed not only by the
general public but by the academy as well. A majority of Supreme
Court Justices ruled that whatever the courts might have said and
whatever most people might believe, Americans never did have a
right to remain silent. And if perchance they ever did, they certainly
don’t have it now. Thus, in one fell swoop the Supreme Court—
employing highly questionable interpretive mechanisms—told
1
Malloy v. Hogan, 378 U.S. 1 (1964), at 8.
Dickerson v. United States, 530 U.S. 428, 443 (2000).
3
Jerry Seinfeld, SeinLanguage (New York: Bantam, 1993), pp. 92-93.
4
Brogan v. U.S., 522 U.S. 398, 405 (1998)
2
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Americans, in effect, the following: “You may believe you have the
right to remain silent. Policemen may have the obligation to advise
you that you have the right to remain silent. But you do not have the
right to remain silent. You do not even have the right not to be
compelled or coerced into confessing your crimes. All you have is the
right to exclude the fruits of compelled self-incrimination at your
criminal trial — if you ever have a criminal trial.” And, as we shall
see, there is a big difference between the fundamental human right to
remain silent and a narrow trial remedy limited to the exclusion of
evidence by criminal defendants.
This difference is becoming increasingly important as coercive
interrogation is used more frequently to obtain information deemed
necessary to prevent future crimes (especially terrorism) than to
secure evidence with which to prosecute past crimes. As we shall also
see, this may be part of a more general trend toward narrowing what
many have long understood to be fundamental human rights – such as
the presumption of innocence and the prohibition against cruel and
unusual punishments – into limited trial and post-trial rights for
criminal defendants. Taken together, these developments enhance the
power of government at the expense of the individual when it is
acting preventively, as distinguished from punitively. They threaten to
leave a gaping “black hole” in our system of constitutional protections
as prevention takes on an increasingly important role in the war
against terrorism.
We shall also explore the implications for democracy of wide
disparities between what citizens believe are their rights (rights as
symbols) and what courts actually enforce as rights (rights as
operative limitations on government). What does it say about a nation
when the vast majority of its citizens—even its well educated
citizens—understand an important constitutional protection so much
more broadly than its courts do?
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What is the Right Against Self-Incrimination?
The Fifth Amendment contains a hodge-podge of rights, some
of which apply only to criminal defendants, while others have a more
general application. It is an example of Churchill’s pudding without a
theme.5 It reads, in whole, as follows:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken
for public use, without just compensation.
Notwithstanding its wide assortment of rights, the Fifth
Amendment, in common parlance has come to refer specifically to the
provision against self-incrimination. As the late Leonard Levy, the
respected historian of the right against self-incrimination, has
correctly observed:
“One who “pleads the Fifth” is not insisting on grand jury
indictment, freedom from the double jeopardy, or just
compensation for property taken by the government – all
safeguarded by the Fifth. He is saying that he will not reply to
an official inquiry because his truthful answer might expose
him to criminal jeopardy.”6
The fifteen words that constitute the constitutional right against selfincrimination are: “no person…shall be compelled in any criminal
case to be a witness against himself.” Although it is called a
“privilege,” which suggests a revocable concession given by the
government to its subjects, in the United States it is a constitutional
“And he insisted on a proper pudding. Mary and I remember once when a pudding
was served up to him, he turned to Clementine and said, ‘Clemmie! Take this
pudding away—it has no theme!” Anthony Browne, Memories of Winston
Churchill. Finest Hour 50.
6
Levy, Origins of the Fifth Amendment, at p. vii which won the Pulitzer Prize.
5
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right that imposes irrevocable limitations on the government.7 Read
literally and narrowly, this right would be limited to precluding the
prosecution in a criminal case from compelling the defendant to
testify, presumably under oath, against himself. As we shall see, such
an interpretation would have rendered the right meaningless at the
time it was written and ratified, since defendants were disqualified
from testifying under oath at their own trials whether they wanted to
or not. Thus, even if there were no Constitutional right not to be
compelled to testify against oneself, no defendant could be compelled
to do so at the time the 5th Amendment became part of our
constitution. As one commentator has aptly put it: “To suggest that
the privilege cannot be claimed except by one on trial is to confine the
privilege to the only context in which it was unavailable at the
founding.”8 It is unlikely that the framers of the 5th Amendment
intended to include in the Bill of Rights a protection that had no
applicability to the legal system as they knew it. Accordingly, despite
its words, the right had never, until this recent decision, been
interpreted so literally. Instead, the courts have “construed the clause
as if its framers neither meant what they said nor said what they
meant.” “Seeking the spirit and policy of the fifth, the [Supreme]
Court has, on the whole, given it an ever-widening, liberal
interpretation, on the principle that ‘it is as broad as the mischief
against which it seeks to guard.” 9 For example, shortly after it was
ratified, the right was interpreted to apply to witnesses who might
become criminal defendants, as well as to those who already were
criminal defendants. 10 In subsequent decisions, it was also held
applicable to out of court police interrogation of suspects, as well as
to in court questioning of defendants by prosecutors or judges.11
As we shall see, the origin of the right grew out of three
somewhat different privileges, with different histories and current
applications. There was the defendant's privilege, which precluded
the prosecution from compelling a criminal defendant to be a witness
at his own trial. There was the witness’ privilege, which granted any
witness in any legal proceeding the right to refuse to answer specific
At common law, there was a “privilege” against self-incrimination. The Fifth
Amendment turned that privilege into a Constitutional “right.” See Levy pp. VIIVIII. I will use these words interchangeably while agreeing with Levy that it is a
right.
8
Donald Dripps, “Akhil Amar on Criminal Procedure and Constitutional Law:
‘Here I Go Down That Wrong Road Again,’” 74 North Carolina Law Review 1559
(1996), at 1625.
9
Levy, Pol. Sci. Q. p 18 _____ quoting Counselman v. Hitchcock
10
See Infra pp ___ ___.
11
See Infra pp ___ ___.
7
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questions that might tend to incriminate him in a subsequent criminal
case, unless he is given immunity that is at least as extensive as his
privilege. And there was the suspect’s privilege, which (at the very
least) prohibited the government from using involuntary statements
that were elicited from the defendants by coercion.12 Taken together,
these privileges and their several variations have been summarized by
courts and commentators as bestowing “the right of a person to
remain silent.” This characterization makes the privilege somewhat
greater than the sum of its parts. The Supreme Court’s recent
decision makes the privilege considerably smaller than the sum of its
parts, and reduces it from an array of rights protecting all “persons” to
a specific remedy, available only to criminal defendants.
When the right against self-incrimination was included in the
Bill of Rights, it generated little controversy or debate. Yet in recent
times, it has created a hailstorm of criticism, from academics,
politicians and the general public. Levy has observed that when
someone invokes “The Fifth,” he:
“seems to be saying that he has something to hide, making the
Fifth Appear to be a protection of the guilty and raising the
question why the framers of the Bill of Rights should have
wanted to protect the guilty. Without doubt the right against
self-incrimination is the most misunderstood, unrespected, and
controversial of all rights.
Over a half-century ago, during the era of
McCarthyism, when the United States underwent one of its
periodic red scares, politicians and newspapers collaborated in
giving the utmost publicity to the number of time some socalled “hostile” witness before a legislative investigating
committee invoked the Fifth Amendment. Dozens of
individuals were censured before the bar of public opinion as
“Fifth Amendment Communists,” a term then infamous.
Demagoguery is fairly easy to comprehend, but not a
nationwide contempt for a constitutional right.”13
Levy has acknowledged that during the McCarthy period he
himself:
“wondered why the Bill of Rights contained a provision that
benefited criminals and enemies of the United States. I knew
12
As we shall also see, there are two types of statements that are subject to
exclusion - - those that are coerced and/or involuntary; and those obtained in
violation of the Miranda rule. Different consequences flow, depending on whether
the statements fall into the former or latter category.
13
Levy, p. vii
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enough about those who framed and ratified the Bill of Rights
to understand that they could not be dismissed as fools, starryeyed idealists, or mushy liberals. I knew too that the Bill of
Rights, which protects mainly the rights of the criminally
accused, was added to the Constitution as a result of an
overwhelming popular demand that Washington, Hamilton,
and others in the first administration could not possibly
ignore.”14
Levy, who was primarily an American historian, decided to learn
about the British origins of this right. That curiosity led him to write
the first scholarly book on the history of the Fifth Amendment -- a
book that has been subject to much recent scholarly criticism.15
I too became interested in the Fifth Amendment during the
McCarthy era. I was in high school and then in college at the time
and so I did not write a book, merely a term paper. In it, I explored
the history, policies and applications of the privilege, especially in the
context of legislative investigations, where many of the battles over
the scope of the 5th Amendment were then being fought. I pointed
out that the privilege had “traversed many cycles” over the years and
had been “adapted to changing times and needs,” and concluded that
though we “are considering the very same constitutional phrase, we
are dealing with a completely new and hitherto unknown privilege.”16
I now believe, with Ecclesiastics, that there is rarely anything
completely new under the sun, but it is true that the right against selfincrimination has undergone frequent reinterpretation and redefinition
as our legal and political systems have changed over time, and as we
as a nation have experienced abuses of different kinds.
Recently a prominent judge told me that while he understood
the history and policies underlying all of the other rights in our
constitution, he did not understand why a guilty defendant should
have the right to refuse, without consequence, to answer relevant
questions properly put to him by a government official. This judge is
joined by many academics and ordinary citizens who wonder about
this and other questions that are naturally raised by the somewhat
unnatural right against self-incrimination.17 It is among the most
controversial and misunderstood rights in our constitution. Many
14
Levy, p. vii
See Infra. p. ___
16
(Brooklyn College Archive)
17
I do not believe in “natural” right or “divine” rights. I believe that rights are
human responses to human wrongs. See Alan Dershowitz, Rights from Wrongs
(2004, p. 230).
15
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Americans do not even know its scope—and, as we shall see, for
good reasons.
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The Different Meanings of the Fifth
The Delphic words of the Fifth Amendment’s privilege
against self-incrimination have been interpreted by courts and
commentators to mean radically different things over the years. Here
are some of the most common interpretations and understandings
from the broadest to the narrowest.
1.) The Right to Remain Silent:
“[T]he Fifth Amendment guarantees…the right of a person to remain
silent unless he chooses to speak in the unfettered exercise of his own
will, and to suffer no penalty … for such silence.”18
2.) The right to a private enclave into which the government may not
pry:
“The privilege against self-incrimination … reflects many of our
fundamental values and most noble aspirations [including] [o]ur
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.’”19
3.) The right not to be compelled to expose one’s own guilt:
“The essential and inherent cruelty of compelling a man to expose his
own guilt is obvious to every one, and needs no illustration. It is plain
to every person who gives the subject a moment’s thought.
“A sense of personal degradation in being compelled to
incriminate one’s self must create a feeling of abhorrence in the
community at its attempted enforcement.”20
18
Malloy v. Hogan, 378 U.S. 1 (1964), at 8.
Murphy at 55.
20
Brown v. Walker, 161 U.S. 591 (1896), at 637 (Field, J. dissenting).
Commentators have also held this view. See also Telford Taylor, “The
Constitutional Privilege against Self-Incrimination,” Annals of the American
Academy of Political and Social Science, Vol. 300 (July 1955), at p. 117:
“Why does an innocent man really need this privilege? Does it not raise
the inference of his probably guilt if he uses it? Why does he not stand up like a
man and say what the facts are?
“I think on this point we now have to recall that whether you are guilty or
innocent is not a philosophical absolute; it is what the jury decides. And what the
jury decides might be right or might be wrong. They decide it on the basis of the
evidence before them. If you yourself under accusation are the source of the
evidence which arouses suspicion, which might establish guilt, then you have put
yourself in a worse position before the jury.”
19
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4.) The right not to be compelled under oath to make selfincriminating statements, unless granted immunity co-extensive with
the privilege:
“Our unwillingness to subject those suspected of crime to the
cruel trilema of self-accusation, perjury or contempt…”21
“The privilege assures that a citizen is not compelled to incriminate
himself by his own testimony. It usually operates to allow a citizen to
remain silent when asked a question requiring an incriminatory
answer. This [immunity] statute, which operates after a witness has
given incriminatory testimony, affords the same protection by
assuring that the compelled testimony can in no way lead to the
infliction of criminal penalties.”22
5.) The right not to be coerced by the police into making an
involuntary self-incriminating statement
“Interrogation of people by the police is an indispensable aspect of
criminal investigations. But there is no right to interrogate — by the
police any more than by the courts — when the privilege against selfincrimination is invoked. Knowing this, the police have set up in its
place a system of administrative detention that has no constitutional
justification. It is detention incommunicado, a system which breeds
oppression. In the present case this illiterate petitioner was not given
the modicum of protection afforded in England where a prisoner is
warned that statements made may be used against him and where the
police are enjoined not to hammer away at a prisoner nor even to
cross-examine him when he makes a voluntary statement except to
clear up ambiguities. The flow of cases coming here shows that
detention incommunicado is often accompanied by illegality and
brutality.”23
“The ultimate test remains that which has been the only clearly
established test in Anglo-American courts for two hundred years; the
test of voluntariness. Is the confession he product of an essentially
free and unconstrained choice by its maker? If it is, if he has willed to
confess, it may be used against him. If it is not, if his will has been
overborne and his capacity for self-determination critically impaired,
the use of his confession offends due process.”24
21
Murphy at 55
Kastigar v. United States, 406 U.S. 441, at 461 (note omitted).
23
Culombe v. Connecticut, 367 U.S. 568 (1961), at 639-40 (Douglas, J. concurring)
(notes and internal citations omitted).
24
Culombe v. Connecticut, 367 U.S. 568 (1961), at 602.
22
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6.) The right to be advised of Miranda Rules
“Prior to any questioning, the person must be warned that he
has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence
of an attorney, either retained or appointed.”25
7.) The right not to be tortured into providing incriminating
information.
“[The Fifth Amendment is] the most specific provision in the
Bill of Rights ‘that protects all citizens from the kind of
custodial interrogation that was once employed by the Star
Chamber, by ‘the Germans of the 1930’s and early 1940’s,
and by some of our own police departments only a few
decades ago.’ Whenever it occurs, as it did here, official
interrogation of that character is a classic example of a
violation of a constitutional right ‘implicit in the concept of
ordered liberty.”26
“In my view the Self-Incrimination Clause is applicable at the
time and place police use compulsion to extract a statement
from a suspect. The Clause forbids that conduct.”27
8.) Right of a criminal defendant not to testify and not to have factfinder draw inference of guilt from his decision:
“For comment on the refusal to testify is a remnant of the
inquisitorial system of criminal justice, which the Fifth Amendment
outlaws. It is a penalty imposed by courts for exercising a
constitutional privilege. It cuts down on the privilege by making its
assertion costly.”28
25
Miranda v. Arizona, 384 U.S. 436
(1966), at 444.
26
Chavez v. Martinez (Stevens Opinion)
27
Chavez v. Martinez (Kennedy Opinion)
28
“Our views on the proper scope of the Fifth Amendment’s SelfIncrimination Clause do not mean that police torture or other abuse that results in a
confession is constitutionally permissible so long as the statements are not used at
trial; it simply means that the Fourteenth Amendment’s Due Process Clause, rather
than the Fifth Amendment’s Self-Incrimination Clause, would govern the inquiry in
those cases and provide relief in appropriate circumstances.” Chavez vs. Martinez,
538 U.S. 760 (2003), at 773.
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9.) Right to have prosecution bear heavy burden of proving
defendant’s guilt without relying on defendant’s testimony.
“Requiring the government in its contest with the individual to
shoulder the entire load…”29
“The privilege against self-incrimination [is] the essential
mainstay of our adversary system…”30
10.) Right to enjoin or seek damages against government officials
who violate these rights.
“The police may not prolong or increase a suspect's suffering against
the suspect's will. That conduct would render government officials
accountable for the increased pain. The officers must not give the
impression that severe pain will be alleviated only if the declarant
cooperates, for that, too, uses pain to extract a statement. In a case like
this one, recovery should be available under § 1983 if a complainant
can demonstrate that an officer exploited his pain and suffering with
the purpose and intent of securing an incriminating statement.”31
11.) Right to exclude self-incriminatory statements and its fruits from
any use in criminal prosecution against defendant.
“Statements compelled by police interrogations of course may not be
used against a defendant at trial…but it is not until their use in a
criminal case that a violation of the Self-Incrimination clause
occurs.”32
12.) Right to exclude self-incriminating statements obtained in
violation of Miranda, but not its fruits from government’s case in
chief against defendant, and not even the statement if defendant takes
the stand.
“In this case we must decide whether a failure to give a suspect the
warnings prescribed by Miranda v. Arizona requires suppression of
the physical fruits of the suspect’s unwarned but voluntary
statements…. Because the Miranda rule protects against violations of
the Self-Incrimination Clause, which, in turn, is not implicated by the
introduction at trial of physical evidence resulting from voluntary
29
Murphy at 55
Miranda at 460
31
Chavez v. Martinez, 538 U.S. 760 (2003), at 797 (Kennedy, J. concurring in part
and dissenting in part).
32
Chavez v. Martinez, 538 U.S. 760 (2003), at 767.
30
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statements, we answer the question presented in the negative.”33
“Some comments in the Miranda opinion can indeed be read
as indicating a bar to use of an uncounseled statement for any
purpose, but discussion of that issue was not at all necessary to the
Court's holding and cannot be regarded as controlling. Miranda
barred the prosecution from making its case with statements of an
accused made while in custody prior to having or effectively waiving
counsel. It does not follow from Miranda that evidence inadmissible
against an accused in the prosecution's case in chief is barred for all
purposes, provided of course that the trustworthiness of the evidence
satisfies legal standards…. The shield provided by Miranda cannot
be perverted into a license to use perjury by way of a defense, free
from the risk of confrontation with prior inconsistent utterances. We
hold, therefore, that petitioner's credibility was appropriately
impeached by use of his earlier conflicting statements.”34
As we shall see, the scope and application of the rights against selfincrimination has varied over time with the intensity of governmental efforts
and the means employed to elicit information from individuals. The Supreme
Court’s recent decision—following a more general trend--adopted a
extremely narrow view of the constitutional right against self-incrimination,
limiting it to a trial remedy available only to criminal defendants at their own
trials and affording the government enormous latitude to secure information
not necessarily intended for use in criminal trials.
33
34
United States v. Patane, 542 U.S. 630 (2004), at 633-34.
Harris v. New York, 401 U.S. 222 (1971), at 224, 226.
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The Supreme Court’s Recent Decision
The case is Chavez v. Martinez,35 decided on May 27, 2003. It
was a civil, not a criminal, case, but it definitely decided an important
constitutional issue regarding the meaning and scope of the right
against self-incrimination. The victim of police coercion sued the
police officer under a federal statute. The law grants a police officer
“qualified immunity” from such a lawsuit unless his conduct violated
a constitutional right. It was necessary therefore for this Supreme
Court to determine whether the police officer had violated the
victim’s constitutional right. The lower courts had ruled that the
police officer had violated the plaintiff’s constitutional rights by
subjecting him to coercive interrogation after he had been shot by
another officer. The Supreme Court granted review in order to decide
whether police coercion alone, without the subsequent use of the
fruits of such coercion against the person in the criminal case,
constitutes a violation of the Fifth Amendment. There were six
opinions, none of which alone reflected a majority view, but the
opinion of Justice Thomas—joined by then-Chief Justice Rehnquist
and Justices O’Conner and Scalia—carried the day and is likely to
reflect the views of a majority of the current High Court.36 That
opinion concluded that Martinez’s privilege against self-incrimination
had not been violated by police officers who had coerced him—
according to Justice Stevens, essentially tortured him—into making
statements that were self-incriminating, because the statements were
never used against him in a criminal case. (Martinez was never
charged with a crime.37) Justice Souter “concurred” in the Court’s
judgment that mere compulsion does not violate the privilege against
self-incrimination so long as the resulting “testimony”38 is not
admitted into evidence at the person’s criminal trial. Justice Breyer
joined Souter’s opinion. Three Justices—Stevens, Kennedy, and
Ginsburg—concluded, in dissent, that the privilege could be violated
whenever “torture or its close equivalents are brought to bear” on a
person, regardless of whether its fruits are ultimately admitted against
him in a criminal case. Not a single justice accepted the view,
asserted by [DID ANYONE ASSERT THIS? CHECK BRIEFS
35
538 U.S. 760 (2003).
Since Chavez was decided, two new Justices have been confirmed. Both
replaced Justices who joined the Thomas decision. Chief Justice Roberts replaced
Chief Justice Rehnquist and Justice Alito replaced Justice O’Connor.
37
Martinez, 538 U.S. at 764.
38
Justice Souter confuses “testimony” with “evidence.” “Martinez’s testimony”
would not be at issue if the police testified as to his unsworn earlier statements.
36
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INCLUDING AMICUS]39 that the use of coercion that would be
sufficient to exclude its fruits from a criminal trial but that is short of
“torture or its close equivalent,” would constitute a stand-alone
violation of the privilege, absent subsequent use.
The nose-count therefore was 6-3 on the fundamental
constitutional issue of whether the privilege against self-incrimination
bestows any right to remain silent. The majority said no. Nor does
the privilege grant a correlative right not to be compelled or coerced
into making statements that are self-incriminating. All it requires is
that if compulsion has been employed against a person by government
officials—police or judges—the resulting statements may not be
admitted into evidence against that person at a subsequent criminal
trial, if there ever is one.40 Absent such use of coerced statement,
there has been no violation of the privilege in the coercion itself, no
matter how extreme. Even the three dissenters would require more
than a mere violation of a citizen’s right to remain silent, or not to be
coerced into making incriminating statements, for there to be a
violation of the privilege. According to the Stevens standard, unless
the government employed “torture or its close equivalents,” there
would be no violation of the privilege. Even if a suspect were
brutally coerced into involuntarily confessing a crime, his right
against self-incrimination would not be violated so long as the
coercion did not rise to the level of torture. All nine justices therefore
rejected the widespread belief that Americans have the right to remain
silent, even in the face of coercive questions.41
Justice Souter’s opinion ended with a one-sentence conclusion
remanding the case for a determination of whether Martinez “may
pursue a claim of liability for a substantive due process
violation….”42 This final paragraph constituted “the opinion of the
Court.”43 In other words, a majority of the Court, while clearly
deciding that coercion—even coercion of the kind employed against
Martinez—does not violate the privilege against self-incrimination,
left open the question of whether the coercion at issue in this case rose
to the level of a due process violation. Justices Thomas, Scalia,
Rehnquist, and O’Connor voted against the remand, being “satisfied
39
CHECK THIS
It also means that no criminal defendant may be compelled to testify—to be an
actual trial witness—against himself at his criminal trial. That much is literally
required by the words of the privilege. More about this infra at pp. ___.
41
Kennedy’s view is less than completely clear, because [FILL IN]
42
Martinez, 538 U.S. at 779.
43
Martinez, 538 U.S. at 777.
40
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that [the interrogation in this case, though coercive] did not violate
Martinez’s due process rights.”44 In other words, according to these
justices, there was absolutely nothing unconstitutional about an
interrogation which Justice Stevens characterized as “the functional
equivalent of … torturous methods.”45
The actual facts of the case were essentially undisputed,
because the crucial moments of the interrogation were tape recorded.
Although the interplay between the officer and Martinez in the police
car on the way to the hospital was not recorded, and the recorder was
turned off whenever the emergency room staff took Martinez out of
his room, the Court of Appeals accepted its finding that “The
transcript of the recorded conversation totals about ten minutes and
provides an incontrovertible account of the interview.”46 The
disagreement was primarily over the application of the Fifth
Amendment to those facts. It was this disagreement that gave rise to
the multiplicity of opinions and the sharp division over the proper
constitutional result. Here are the facts as set out, somewhat
antiseptically47, by Justice Thomas:
On November 28, 1997, police officers Maria Peña
and Andrew Salinas were near a vacant lot in a residential area
of Oxnard, California, investigating suspected narcotics
activity. While Peña and Salinas were questioning an
individual, they heard a bicycle approaching on a darkened
path that crossed the lot. They ordered the rider, respondent
Martinez, to dismount, spread his legs, and place his hands
behind his head. Martinez complied. Salinas then conducted a
patdown frisk and discovered a knife in Martinez’s waistband.
An altercation ensued.48
There is some dispute about what occurred during the
altercation. The officers claim that Martinez drew Salinas’ gun
44
Martinez, 538 U.S. 774.
Martinez, 538 U.S. 783.
46
Martinez v. City of Oxnard, 270 F.3d 852 (9th Circuit 2001), at 855.
47
ALEX: GET WALL STREET JOURNAL., Article about “when there is blood
on an opinion” FN about judges distort facts to make their points. (ALAN: I EMAILED YOU THE ARTICLE. LET ME KNOW HOW YOU WANT TO
WORK IT IN.)
48
[Note to copy editor: This should be a footnote, NOT an endnote.] [This footnote
is from the opinion:] The parties disagree over what triggered the altercation. The
officers maintain that Martinez ran away from them and that they tackled him while
in pursuit; Martinez asserts that he never attempted to flee and Salinas tackled him
without warning.
45
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from its holster and pointed it at them; Martinez denies this.
Both sides agree, however, that Salinas yelled, “‘He’s got my
gun!’” Peña then drew her gun and shot Martinez several
times, causing severe injuries that left Martinez permanently
blinded and paralyzed from the waist down. The officers then
placed Martinez under arrest.
Petitioner Chavez, a patrol supervisor, arrived on the
scene minutes later with paramedics. Chavez accompanied
Martinez to the hospital and then questioned Martinez there
while he was receiving treatment from medical personnel.
The interview lasted a total of about 10 minutes, over a 45minute period, with Chavez leaving the emergency room for
periods of time to permit medical personnel to attend to
Martinez.
At first, most of Martinez’s answers consisted of “I
don’t know,” “I am dying,” and “I am choking.” Later in the
interview, Martinez admitted that he took the gun from the
officer’s holster and pointed it at the police. He also admitted
that he used heroin regularly. At one point, Martinez said “I
am not telling you anything until they treat me,” yet Chavez
continued the interview. At no point during the interview was
Martinez given warnings under Miranda v. Arizona.49
Justice Stevens provides a far more graphic and detailed
description, quoting extensively from the English translation of the
tape-recorded questioning in Spanish that occurred in the emergency
room of the hospital when Martinez was suffering great pain and
believed he was dying:
“Chavez: What happened? Olivero, tell me what
happened.
“O[liverio] M[artinez]: I don’t know.
“Chavez: I don’t know what happened (sic)?
“O. M.: Ay! I am dying. Ay! What are you doing to
me?
“No, . . .! (Unintelligible scream).
49
Martinez, 538 U.S. at 763-64 (citations omitted).
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“Chavez: What happened, sir?
“O. M.: My foot hurts. . .
“Chavez: Olivera. Sir, what happened?
“O. M.: I am choking.
“Chavez: Tell me what happened.
“O. M.: I don’t know.
“Chavez: ‘I don’t know.’
“O. M.: My leg hurts.
“Chavez: I don't know what happened (sic)?
“O. M.: It hurts. . .
“Chavez: Hey, hey look.
“O. M.: I am choking.
“Chavez: Can you hear? look listen, I am Benjamin
Chavez with the police here in Oxnard, look.
“O. M.: I am dying, please.
“Chavez: OK, yes, tell me what happened. If you are
going to die, tell me what happened. Look I need to
tell (sic) what happened.
“O. M.: I don’t know.
“Chavez: You don’t know, I don’t know what
happened (sic)? Did you talk to the police?
“O. M.: Yes.
“Chavez: What happened with the police?
“O. M.: We fought.
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“Chavez: Huh? What happened with the police?
“O. M.: The police shot me.
“Chavez: Why?
“O. M.: Because I was fighting with him.
“Chavez: Oh, why were you fighting with the police?
“O. M.: I am dying. . .
“Chavez: OK, yes you are dying, but tell me why you
are fighting, were you fighting with the police?
.....
“O. M.: Doctor, please I want air, I am dying.
“Chavez: OK, OK. I want to know if you pointed the
gun [to yourself] at the police. [CHECK THIS]
“O. M.: Yes.
“Chavez: Yes, and you pointed it [to yourself]? (sic) at
the police pointed the gun? (sic) Huh?
“O. M.: I am dying, please. . .
.....
“Chavez: OK, listen, listen I want to know what
happened, ok??
“O. M.: I want them to treat me.
“Chavez: OK, they are do it (sic), look when you took
out the gun from the tape (sic) of the police. . .
“O. M.: I am dying. . .
“Chavez: Ok, look, what I want to know if you took
out (sic) the gun of the police?
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“O. M.: I am not telling you anything until they treat
me.
“Chavez: Look, tell me what happened, I want to
know, look well don’t you want the police know (sic)
what happened with you?
“O. M.: Uuuggghhh! my belly hurts. . .
.....
“Chavez: Nothing, why did you run (sic) from the
police?
“O. M.: I don’t want to say anything anymore.
“Chavez: No?
“O. M.: I want them to treat me, it hurts a lot, please.
“Chavez: You don’t want to tell (sic) what happened
with you over there?
“O. M.: I don’t want to die, I don’t want to die.
“Chavez: Well if you are going to die tell me what
happened, and right now you think you are going to
die?
“O. M.: No.
“Chavez: No, do you think you are going to die?
“O. M.: Aren’t you going to treat me or what?
“Chavez: Look, think you are going to die, (sic) that’s
all I want to know, if you think you are going to die?
Right now, do you think you are going to die?
“O. M.: My belly hurts, please treat me.
“Chavez: Sir?
“O. M.: If you treat me I tell you everything, if not, no.
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“Chavez: Sir, I want to know if you think you are
going to die right now?
“O. M.: I think so.
“Chavez: You think (sic) so? Ok. Look, the doctors
are going to help you with all they can do, Ok?. That
they can do.
“O. M.: Get moving, I am dying, can’t you see me?
come on.
“Chavez: Ah, huh, right now they are giving you
medication.”
The sound recording of this interrogation, which has been
lodged with the Court, vividly demonstrates that respondent
was suffering severe pain and mental anguish throughout
petitioner’s persistent questioning.50
Justice Stevens concluded that it “is evident from the text [that] both
parties believed that [Martinez] was about to die,”51 and characterized
the interrogation as “the functional equivalent of an attempt to obtain
an involuntary confession from a prisoner by torturous methods.”52
The findings of the trial court would seem to confirm Justice
Stevens’s characterization. It found that Martinez had been “shot in
the face, both eyes were injured; he was screaming in pain and
coming in and out of consciousness while being repeatedly
questioned….” Justice Kennedy elaborated on these findings:
“The transcript…and other evidence considered by the District
Court demonstrate that the suspect thought his treatment
would be delayed, and thus his pain and condition worsened,
by refusal to answer questions….
His blinding facial wounds made it impossible for him
visually to distinguish the interrogating officer from the
attending medical personnel. The officer made no effort to
50
Martinez, 538 U.S. at 784-86
(citation omitted).
51
Martinez, 537 U.S. at 784.
52
Martinez, 537 U.S. at 783.
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dispel the perception that medical treatment was being
withheld until Martinez answered the questions put to him.
There was no attempt through Miranda warnings or other
assurances to advise the suspect that his cooperation should be
voluntary. Martinez begged the officer to desist and provide
treatment for his wounds, but the questioning persisted despite
these pleas and despite Martinez’s unequivocal refusal to
answer questions….
In this case no reasonable police officer would believe
that the law permitted him to prolong or increase pain to
obtain a statement. The record supports the ultimate finding
that the officer acted with the intent of exploiting Martinez’s
conditions for purposes of extracting a statement.”53
Martinez did not die, but he was permanently paralyzed and blinded.
All the justices agreed that the answers given by Martinez
were “compelled,” “coerced,” “involuntary,” and obtained without the
necessary Miranda warnings. All agreed therefore that nothing
Martinez said in response to this interrogation could be admitted
against him in a criminal case and that admission of any such coerced
responses would violate his privilege against self-incrimination. All
agreed as well that since Martinez was never prosecuted, the
statements that were coerced from him were never used against him at
a criminal trial. But here the agreement ends and the major dispute
begins: namely what is the extent of Martinez’s rights under the Fifth
Amendment? Did he have a right “to remain silent”? Did he have a
right not to be coerced into making self-incriminating statements? Or
was his only right not to have his coerced statements used against him
in a criminal case? Put another way, does the Fifth Amendment
provide a primary right to remain silent, or only a secondary right to a
particular remedy — namely exclusion of coerced statements? Is the
privilege against self-incrimination only an exclusionary rule or does
it also contain an important substantive right to remain silent? Or not
to be coerced or compelled to admit crimes? Put yet another way:
what is the point of impact of the privilege? When compulsion is
employed? Or only when its fruits are admitted against the coerced
person at his criminal trial? On the answers to those questions did the
outcome of the case turn: if Martinez had a primary right to remain
silent, or not to be coerced, that right was plainly violated by the
admitted police coercion. But if his only right was to exclude the
53
Martinez, 538 U.S. at 797-99.
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evidentiary fruits of such coercion from his criminal trial, then he
suffered no violation of his rights, since he never had a criminal trial.
Nor is this merely a “technical,” “verbal,” or “legalistic”
disagreement. The stakes for all Americans are extremely high,
especially in an age of terrorism, when preventive intelligence –
information not intended to be used in criminal cases -- is often
gathered by coercive means. As we move closer to the preventive
state and further from the deterrent state - - as the paradigm begins to
shift from after-the-fact punishment to before-the-fact prevention54 - there will be more emphasis on securing preventive intelligence
information than on securing self-incriminating confessions to be
used in criminal cases.55
Accordingly, the Martinez case is a perfect vehicle with which
to explore the terrain of the right against self-incrimination, to view
the panoramic landscape of historical abuses that provide the
background for the development of this important right, and to peer
over this horizon in an effort to glimpse its future in the age of terror
prevention.
The Thomas view (shared by five other justices), taken to its
logical conclusion, means that the privilege against self-incrimination
has absolutely nothing to say about the means employed by
government to extract information from an American citizen (or
anyone else), so long as the information is not used against the citizen
at his criminal trial. In other words, the government may — without
violating the privilege against self-incrimination — torture a citizen
into providing intelligence information deemed necessary to prevent a
terrorist attack or any other feared harm. (Recall that the Martinez
case did not involve the prevention of terrorism or any other physical
harm; the concern that motivated the police to use coercion was that
evidence that could help the police in a possible civil suit could be
lost if Martinez died without admitting that he was at fault.) There
are no apparent limits to this power under the majority views of the
privilege, except that the fruits of the coercion may not then be
admitted in a criminal case against the person coerced. Since eventual
admissions of the fruits in a subsequent criminal trial is often not the
object of the interrogation – as it was not in the Martinez case – there
54
See Preemption: A Knife That Cuts
Both Ways
55
FN on Israel where the fruits of preventive intelligence is not used in criminal
cases. Also England.
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will be little disincentive to the police to forbear from coercion,
especially if they are immunized from civil liability.56
To be sure, there may be other provisions of the Constitution,
particularly the “due process” clause, that prohibit or limit torture (or
other forms of coercive interrogation). That remains to be seen.57
The words themselves — “due process” — are quite subjective,
meaning, literally, the “process” that is “due” a citizen.58 That
process may vary with circumstances. It is not an absolute
prohibition, such as the one apparently contained in the privilege
against self-incrimination, which provides that “no person…shall be
compelled in any criminal case to be a witness against himself….”59
Some Justices and scholars reject the view that due process imposes
any substantive — as distinguished from procedural — constraints on
government.60 Others take the view that only the most extreme forms
of torture — and certainly not the conduct at issue in the Martinez
case — are violative of due process. Justice Thomas, in his opinion
for four justices, takes an extremely narrow view of due process:
“We are satisfied that Chavez’s questioning did not violate
Martinez’s due process rights. Even assuming arguendo, that
the persistent questioning of Martinez somehow deprived him
of a liberty interest, we cannot agree with Martinez’s
characterization of Chavez’s behavior as “egregious” or
“conscience shocking.” As we noted in [County of
Sacramento v.] Lewis, the official conduct “most likely to rise
to conscience-shocking level” is the “conduct intended to
injure in some way unjustifiable by any government interest.”
Here, there is no evidence that Chavez acted with a purpose to
harm Martinez by intentionally interfering with his medical
treatment. Medical personnel were able to treat Martinez
throughout the interview, and Chavez ceased his questioning
to allow tests and other procedures to be performed. Nor is
there any evidence that Chavez’s conduct exacerbated
56
Complex issue: federal civil rights actions, state tort suits
[FN ON WHAT HAPPENED ON REMAND.]
58
The text of the due process clause suggests that it is procedural. The Fifth
Amendment says that “no person shall be deprived of life, liberty or property
without due process of law.” The 14th Amendment uses similar language but
applies it to the states. Thus, the substantive values of life, liberty and property may
not be taken away except by compliance with the procedural requirements of due
process. This much debated interpretation will be considered infra.
59
Emphasis added. History may show it has been a relative concept at common law,
varying with the prior evidence.
60
TRYTO FIND SUPPORT FOR THIS
57
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Martinez’s injuries or prolonged his stay in the hospital.
Moreover, the need to investigate whether there had been
police misconduct constituted a justifiable government interest
given the risk that key evidence would have been lost if
Martinez had died without the authorities ever hearing his side
of the story.”61 (emphasis added)
Under this standard, coercive interrogation would be constitutionally
permissible if its purpose were to serve a “justifiable government
interest.” This would certainly seem to cover the government’s
interest in obtaining information deemed necessary to prevent not
only terrorism, but any crime or social evil. Here the government
interest was relatively minor – protecting police officers from possible
liability by getting Martinez to admit he was at fault. If the
governmental interest were far more compelling – the prevention of
terrorism, for example – the degree of coercion could presumably
exceed even that used here without violating either due process or the
privilege against self-incrimination.62 At least that was the view of
Justice Thomas and his three colleagues.
The five majority justices on the issue of due process did not
conclude that the conduct in this case necessarily rose to the level of a
substantive due process violation. They simply remanded the case to
the lower court for a determination of whether Martinez could
“pursue a claim” that his right to substantive due process had been
violated by the police interrogation itself. [ALEX: CHECK WHAT
HAPPENED ON REMAND]
The current law of substantive due process, as it relates to
police interrogation, is in a state of disarray. The court has “always
been reluctant to expand the concept of substantive due process.”63
Accordingly it ruled in Graham v. Conner, 490 U.S. 386 (1985) that
where “a particular amendment provides an explicit textual source of
constitutional protection against a particular sort of government
behavior, that amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these
claims.”
What does this ruling mean with regard to the claim made by
Martinez in this case? Martinez argued that the interrogation in his
61
538 U.S. 760, at 774-75 (citations omitted).
Nor would torture constitute “cruel and unusual” punishment, since the Court has
ruled that this prohibition applies only to punishment imposed after trial and with a
“punitive purpose.” [CITE] [Charlie: SOMEONE, PLEASE CHECK THIS FOR
ME. I THINK ALAN IS LOOKING FOR Hope v. Pelzer, 536 U.S. 730.]
63
Colins v Harker U.S. 386(19) 503 U.S. 115,125 (1992)
62
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case violated the privilege against self-incrimination, which in his
view provides “an explicit textual source of constitutional protection
against [the] government behavior” in his case. A majority of the
Supreme Court disagreed. Does that mean that the case can now be
decided under substantive due process? Or must it still be decided - against Martinez - - under the privilege against self-incrimination,
because it is the text of that more specific provision of the Fifth
Amendment that “must be the guide for analyzing” his claims? In
199764 the Court stated that the Graham principle:
“does not hold that all constitutional claims relating to
physically abusive government conduct must arise under
either the Fourth or Eighth Amendments; rather, Graham
simply requires that if a constitutional claim is covered by a
specific constitutional provision, such as the Fourth or Eight
Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of
substantive due process.”65
In 1998, the Court applied that ruling in a case involving a
police chase that resulted in the death of the fleeing suspect. It
ruled that police chases that do not culminate in a “seizure” of the
suspect are not “covered” by the Fourth Amendment.66
Accordingly, the case could be considered under the rubric of
substantive due process. The court held, however, that there was
no violation of substantive due process, even though the actions of
the police involved “deliberate or reckless indifference to life.”
The Martinez case is somewhat different. The interrogation is
plainly “covered” by the privilege against self-incrimination, as
evidenced by the conclusion - - agreed to by all nine justices - - that
its fruits would be inadmissible in any criminal prosecution against
Martinez. But that “cover” does not provide a remedy other than
exclusion. Nor does it provide a stand alone right not to be
coerced.
It is difficult to predict, therefore, whether the Supreme Court
will hold, in a case like Martinez’s, that the privilege “covers” the
interrogation and that that provision of the Fifth Amendment rather
than “the more generalized notions of substantive due process must
be the guide for analyzing these claims.” The fact that a majority
of the justices remanded the Martinez case for a determination of
64
Describe case: U.S. v. Lanier, 520 U.S. 259 (1997)
United Sates v. Lanier, 520 U.S. 259, n. 7 (1997).
66
“Substantive due process analysis is therefore inappropriate in his case only if
respondent’ claim is “covered by” the Fourth Amendment”. 523 U.S. 833 (1998)
65
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whether Martinez may pursue a claim of substantive due process,
suggests that his case may not be “covered”, by the privilege, in the
sense used by the court in Lanier.
Even if claims of abusive interrogation can survive the
“covered by” a specific amendment test, and be considered under
“substantive due process,” the criteria for establishing a violation of
substantive due process, are not easy to satisfy. The test for
determining whether government action violates substantive due
process has long been whether it “shocks the conscience.” That
test was first articulated by Justice Felix Frankfurter in the 1952
case of Rochin v. California67, which involved an effort by three
California deputy sheriffs to retrieve capsules - - reasonably
believed to be unlawful drugs - - from the stomach of a suspect
who had swallowed them during a police search:
“When asked “whose stuff is this?” Rochin seized the
capsules and put them in his mouth. A struggle ensued, in the
course of which the three officers “jumped upon him” and
attempted to extract the capsules. The force they applied
proved unavailing against Rochin’s resistance. He was
handcuffed and taken to a hospital. At the direction of one of
the officers a doctor forced an emetic solution through a tube
into Rochin’s stomach against his will. This “stomach
pumping” produced vomiting. In the vomited matter were
found two capsules which proved to contain morphine.”68
The Supreme Court ruled that:
“This is conduct that shocks the conscience. Illegally
breaking into the privacy of the petitioner, the struggle to open
his mouth and remove what was there, the forcible extraction
of his stomach’s contents – this course of proceeding by
agents of government to obtain evidence is bound to offend
even hardened sensibilities. They are methods too close to the
rack and the screw to permit of constitutional
differentiation.”69
In so ruling, the court analogized the conduct at issue in the
Rochin case to coercing a confession:
“It would be a stultification of the responsibility which the
course of constitutional history has cast upon this Court to
hold that in order to convict a man the police cannot extract by
67
342 U.S. 165 (1952)
Rochin v. California 342 U.S. (1951)
69
Rochin v. California 342 U.S. (1951)
68
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force what is in his mind but can extract what is in his
stomach.”70
This analogy would seem to suggest that it could violate substantive
due process for the police to “extract by force what is in [a suspect’s]
mind,” but that might well depend on the nature and degree of the
force employed.
The Rochin case is no longer good due process law under the
Graham principle. Indeed in Lewis, decided in 1998, the Court
explicitly said that a Rochin-type case, involving an intrusive body
search, would “today be treated under the Fourth Amendment,” but it
added that it would have the “same result.”71 The reason it would
have the same result, however, is that a Fourth Amendment search
would have to satisfy the criteria of not being “unreasonable,” but
unreasonableness alone might not satisfy the much more demanding
“shocks the conscience” test of substantive due process.
The “shocks the conscience” test has been controversial from
the very beginning.7273 These days, Justice Scalia mocks it
mercilessly. In Lewis, he accused the majority opinion of:
“resuscitat[ing] the ne plus ultra, the Napoleon Brandy, the
Mahatma Ghandi, the Cellophane of subjectivity, th’ ol’
“shocks-the-conscience” test.”74
He explained his references in a footnote:
“For those unfamiliar with classical music, I note that the
exemplars of excellence in the test are borrowed from Cole
Porter’s “You’re the Top,” copyright 1934.”
The bottom line is that it is impossible to predict with any
level of confidence how the current Supreme Court (or its successors)
will evaluate claims of substantive due process brought by alleged
victims of police abuses in preventive interrogation cases or other
interrogations in which the fruits of the coercion are not used against
the suspect in a subsequent criminal prosecution.75 In light of this
70
71
Rochin v. California
523 U.S. at 849, N.9
72
73
Cite Criticism of it
County of Sacramento v. Lewis, 523 U.S. 833, at 861 (1998) [Charlie:
SOMEONE PLEASE CHECK]
75
Under the Supreme Court’s approach to coercive interrogation, the lower courts
now will have to make a dual determination with regard to every challenge
interrogation. If the fruits of the interrogation are sought to be introduced against
the defendant, the court will have to decide whether impermissible coercion was
used and the resulting confession was involuntary. This will involve an analysis of
74
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uncertainty over substantive due process, the Court’s decision that
coercion alone does not violate the right not to incriminate oneself,
will encourage police to employ coercion in situations involving the
perceived need for preventive intelligence. This is especially true,
since the Court has also said that:
“Qualified immunity seeks to ensure that defendants
“reasonably can anticipate when their conduct may give rise to
liability,” id., at 195, by attaching liability only if “[t]he
contours of the right [violated are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right”
Uncertainty, therefore, is a defense in a case of this sort, both against
civil and criminal liability.76 And there is considerably uncertainty
now, as the result of the multiple opinions in the Chavez case and the
confusion in the law of substantive due process.
In deciding that the privilege against self-incrimination does
not prohibit the government from coercing incriminating information
from a person, so long as that information (and presumably its fruits)
are not admitted against that person in a criminal prosecution, Justice
Thomas relied primarily on the “text of the Fifth Amendment.” He
concluded that “mere coercion does not violate the text of the SelfIncrimination Clause absent use of the compelled statements in a
criminal case and against the witness.” He also relied, but to a lesser
the privilege against self-incrimination. If the interrogation was not coerced and the
confession not involuntary, the court will have to decide whether it nonetheless
violated the Miranda rule. The exclusionary consequences will be different
depending on whether the confession was involuntary or merely a violation of
Miranda. This was the law prior to Martinez and it continues to be the law today.
But if the defendant is not prosecuted and seeks a civil remedy for the improper
interrogation, the court will have to make an entirely different determination. It will
not suffice to conclude that his confession was coerced or elicited in violation of
Miranda. The court will now have to decide whether the interrogation also meets
the far more difficult standard of a substantive due process violation, namely
whether it shocks the conscience and was conducted for no legitimate governmental
purpose. This is a new burden on the courts and will complicate its … [ALAN
HAS TO COMPLETE THIS.]
76
U.S. v. Lanier, 250 U.S. 259, 270: “So conceived, the object of the “clearly
established” immunity standard is not different from that of “fair warning” as it
relates to law “made specific” for the purpose of validly applying £242. The fact
that one has a civil and the other a criminal law role is of no significance; both serve
the same objective, and in effect the qualified immunity test is simply the adaptation
of the fair warning standard to give officials (and, ultimately, governments) the same
protection from civil liability and its consequences that individuals have traditionally
possessed in the face of vague criminal statutes.”
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degree, on precedential analogy: namely the precedent that permits
“an immunized witness [to be] forced to testify on pain of contempt,”
and the analogy between such legally compelled testimony and the
kind of physically coerced statements elicited from Martinez in the
case at issue. Surprisingly, Justice Thomas — who considers himself
something of an “originalist”77 — did not invoke the original history
or understanding of the privilege. Nor did Thomas employ any kind
of a functional analysis of the privilege or consider the impact of his
decision on its application or scope.
In the chapters to come, I will use the Martinez case as a
window into broader issues relating to the history and policies
underlying the privilege against self-incrimination, as well as into the
trend toward turning what many citizens have long regarded as broad
human rights into narrow criminal trial rights. I will also use the
Martinez case to explore the various modes of constitutional analysis
used by the Justices and by mainstream scholars in interpreting the
Constitution in general and the privilege against self-incrimination in
particular. Finally, I will use the Martinez case as a prism through
which to glimpse the future of the privilege in the preventative state
toward which we seem to be moving. I will begin with the textual
analysis employed by Justice Thomas.
David G. Savage, “Engaged in a Very Civil War: The Federalist Society has
reshaped the legal system without ever going to court,” Los Angeles Times,
November 11, 2005, p. A1.
77
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Chapter 1: The Limits of Textual Analysis in Constitutional
Interpretation
No serious judge or scholar would disagree with the
proposition that any effort to interpret a constitutional provision must
begin with its text. The problem is that many such provisions are
ambiguous, unclear, cryptic, open-ended, and subject to multiple
interpretations which may all be reasonable, at least on their face.
Human language, particularly legal and political language, cannot
begin to capture the complexity and nuance of human thought, action
and interaction.78 Oliver Wendell Holmes Jr. wisely observed, “A
word is not a crystal, transparent and unchanged. It is the skin of a
living thought and may vary greatly in color and context according to
the circumstances and time in which it is used.”79 Lewis Carroll put it
more contentiously:
“When I use a word,” said Humpty Dumpty in a rather
scornful tone, “it means just what I choose it to mean –
nothing more nor less….”
“That’s a great deal to make one word mean,” Alice
said in a thoughtful tone.
“When I make a word do a lot of work like that,” said
Humpty Dumpty, “I always pay it extra.”80
As we shall see, some words that appear in our Constitution are
entitled to significant overtime pay plus bonuses.
According to one school of constitutional interpretation, the
words of that document must be interpreted as the framers81
understood them at the time they became part of the Constitution. But
it is not always easy to retrieve the meaning or to adapt it to a legal
(or political) system that has changed considerably over the centuries.
For example, the prohibition against “cruel and unusual punishments”
contained in the Eighth Amendment was written before there were
prisons, capable of holding convicted defendants for long periods of
time. The punishments of the time included death, branding,
stockades, warning out and ____________, but not long term
As Democritus wrote more than 2000 years ago: “word is a shadow of deed.”
Quoted in America Declares Independence, p.4
80
Lewis Carroll, The Annotated Alice (New York: Norton, 2000), p. 213.
81
Broadly defined to include ratifiers etc. – CITE AUTHORITY
78
79
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imprisonment. It is difficult to extrapolate the understanding of the
framers to the current situation in which repeat petit offenders can be
sentenced to life imprisonment under “three strikes” statutes.
Another example would be the prohibition against “excessive
bail,” which the framers understood as permitting no bail - - i.e. no
pre-trial release - - in capital cases. It is difficult, if not impossible, to
determine whether this understanding would translate into denial of
pre-trial release for today’s non-capital defendants charged with drug
crimes. Many crimes that are today not capital were capital at the
time of the enactment of the Bill of Rights precisely because there
were no prisons and therefore no long prison sentences. Once longterm imprisonment became an available alternative, many crimes
previously punished by death, became punishable by life
imprisonment. What is uncertain is whether capital crimes were
deemed non-bailable because the extreme punishment the defendant
faced—namely execution—provided a strong incentive for fleeing, or
whether capital crimes were non-bailable because of the supposed
dangerousness of the crimes and the fear that the defendant might
commit harmful dangerous crimes while awaiting trial? If the former,
the historical argument for pre-trial release of non-capital defendants
today would be strong. If the latter, the case for preventive pre-trial
detention of dangerous defendants would be compelling. But because
nearly all dangerous crimes were also capital crimes at the time the
Bill of Rights were ratified, it is unlikely that the framers ever focused
on which of these two possible reasons explained the non-bailability
of capital crimes. If that is the case, then there as no original
understanding with regard to the bailability of non capital, dangerous
crimes.
Yet another example might be the guarantee of trial by jury in
criminal cases, which was clearly understood by the framers to
require a unanimous twelve man jury (also a jury of property owning,
Christian, white, males). Yet the Court has now permitted nonunanimous, six person juries (with poor, non-Christian, non-white,
non-male jurors).
It is certainly possible that some of the framers of some
open-ended provisions — like “equal protection of the laws,” “due
process,” “cruel and unusual punishment,” “excessive bail,”
“unreasonable searches and seizures” — deliberately wrote them in a
manner that would permit common-law courts to do what commonlaw courts have always done: namely to “evolve”82 differing
I use the term “evolve” because it is a word commonly used by common law
courts. It is, in fact, a poor metaphor because biological evolution is purposeless,
82
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interpretations over time, place, and circumstance. After all, the
framers certainly knew how to write unambiguous provisions that do
not permit of varying judicial interpretations. The age requirements
for president, senators, and members of Congress are not “maturity,”
“experience,” or “seniority” - - words that would not require some
interpretation. They are “thirty five,” “thirty,” and “twenty five”
years of age - - words that are self-defining. The requirement for
ratifying a treaty is not “a substantial majority,” a “supermajority,” or
a “consensus.” It is “two thirds of the Senators present.” The amount
in controversy that triggers a jury trial in civil cases is not
“substantial” or “considerable.” It is “twenty dollars” – not even
adjusted for inflation!
Into which category, then, do the words of the right against
self-incrimination fit? The provision is quite short. “No person …
shall be compelled in any criminal case to be a witness against
himself.” The Supreme Court, in the 1897 decision Bram v. United
States, characterized the provision as “concise” and “generic.”83
Some of its words are relatively simple to interpret. The courts have
long ruled that “persons” includes not only citizens but “resident
aliens.”84 The framers could, of course, have used the term they used
in the Sixth Amendment, “the accused,” but they chose the more
general word “person.” And they placed the privilege not within the
Sixth Amendment, which deals only with criminal defendants, but
instead in the Fifth Amendment which deals both with criminal
defendants and ordinary people. “Shall be compelled” is a bit more
difficult, because it can bear several interpretations. It could refer
only to lawful or formal compulsion, such as that ordered by a judge.
Or it could also include extrajudicial and informal compulsion, such
as that employed by police in the interrogation room. (As we shall
see, there were no police at the time of the framers, but there was a
long history of coercive interrogation). “In any criminal case”—words
that were added at the last minute without debate85—could be defined
narrowly to include only criminal trials, or more broadly to
encompass any investigation into criminal conduct, or even any
random and accidental, whereas common law development is guided by purposive
human hands.
83
Bram v. United States, 168 U.S. 532, 548, 543 (1897).
84
United States v. Balsys, 524 U.S. 666, 671 (1998).
85
Give Explanation that was offered [ALAN: DID YOU HAVE ANY IN MIND?
OR DID YOU JUST WANT ME TO QUOTE THE RECORDS OF THE
DEBATE?]
FROM ALAN: [THERE IS SOME MATERIAL IN THE 5th AMENDMENT
COLLECTION, CITE IT-
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proceeding that could eventuate in a criminal prosecution. “To be a
witness” could be interpreted to mean only a sworn witness who gives
testimony,” or it could include unsworn witnesses as well. But giving
the word “witness” the former meaning would render the provision
meaningless at the time it was written, since defendants were not
allowed to testify as sworn witnesses at their own trials, even if they
wanted to.
Interpreted literally and narrowly, the words of the Fifth
Amendment do not grant a person the right to remain silent. And that
is what Justice Thomas concluded. But that cannot properly end the
inquiry, because the same sort of literal, narrow reading would also
permit the introduction of evidence obtained by police or judicial
coercion prior to trial. Indeed, it would allow the government to use
the unsworn recorded statements admittedly coerced from Martinez,
were he to have been placed on trial for assault with a deadly weapon
– a conclusion categorically rejected by the majority in Martinez.
The words of the 5th Amendment say absolutely nothing at all
about evidence, though some contemporaneous state prohibitions used
that word.86 The 5th Amendment refers only to “a witness.” Read
literally, it prohibits the government87 only from compelling a person
to testify—that’s what “a witness” does—“against himself” in “any
criminal case.” Its words do not prohibit the police from testifying
about — or playing a recording of — what the defendant said (At that
point he was not a witness, but rather a suspect.) after the police
compelled him to speak, but before the criminal trial or case began.88
Nor does it prohibit a clerk from reading the transcript of testimony
the person was compelled by a judge to give in a non-criminal case.
So long as the defendant himself is not called as an actual witness by
the prosecution and compelled to be a live witness against himself at
the criminal trial itself, the text of the Constitution — literally read, as
Justice Thomas said it should be — is not violated.89
Yet Justice Thomas had no doubt that “statements compelled
by police interrogations of course may not be used against a defendant
86
CITE [ALAN: NEED TO LOOK AT LEONARD LEVY BOOK, IN OFFICE,
IN ORDER TO FILL THIS IN.]
87
Literally, only the federal government. See Brown v. Mississippi, 297 U.S. 278
(1936). But, as we shall see, the Fourteenth Amendment has been interpreted to
apply some, though not all, provisions of the Bill of Rights to the states. In Malloy
v. Hogan, 378 U.S. 1 (1964), the Court held the privilege applicable to the states.
88
Justice Thomas said that a “criminal case” begins no earlier than “the initiation of
legal proceedings” and that “police questioning does not constitute a case….”
89
At the time of the ratification of the 5th Amendment, defendants did not testify
under oath [and], so it is difficult to understand the use of the word “witness” in the
context of a criminal case.
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at trial….” But why not? Certainly not because of the text itself,
which would seem to authorize the admissibility of such “statements,”
as long as they were testified to by the police and not the defendant —
so long as the defendant was not compelled to be “a witness against
himself.” Yet Thomas seems to be saying that “the admission into
evidence in a criminal case of confessions obtained through coercive
custodial questioning” would violate “the right protected by the text of
the Self-Incrimination Clause.” No it wouldn’t, because “the text” of
that clause says nothing about evidence of confessions secured by the
police before trial by coercive questioning. Thomas simply makes up
his textual reference. Justice Thomas chides Justice Stevens for his
“indifference to the text of the Self-Incrimination Clause, as well as
[for his] conspicuous absence of a single citation to the actual text of
the Fifth Amendment.” But what Thomas did was worse: he
selectively cites and then selectively shows indifference to the text, as
it fits his result. He cites “the text” for a proposition it simply does
not contain — namely the exclusion of testimony by the police of out
of court confessions they coerced from the defendant. For the text of
the 5th Amendment to support the exclusion of evidence produced by
the prior out-of-court compulsion or coercion of the defendant, it
would have to include words such as the following: “and no evidence
that is the product of compulsion or coercion of the defendant shall be
admitted against him at his criminal trial”. Several state
constitutionals at the time of the framing contained language that
would support the exclusion of all “evidence” that derived from
compelled self-incrimination90, but the text of the Fifth Amendment is
silent about evidence and is limited to prohibiting the government
from compelling a person “to be a witness against himself.”
Indeed, a 1936 Supreme Court decision, rendered before the
privilege had been applied to the states through the Fourteenth
Amendment, read the clause literally as having no application to the
admission into evidence of confessions coerced by the police prior to
trial. In Brown v. Mississippi91 — a state case which dealt with the
constitutionality of convicting someone based on a confession
extracted through torture — the Court said that the self-incrimination
clause of the Fifth Amendment is limited to “the processes of justice
by which the accused may be called as a witness and required to
testify.” The Court went on to say that “compulsion by torture to
extort a confession is a different matter.” That “different matter” was
to be decided under the “due process” clause, not the privilege against
90
91
Quote several state constitutions.
Brown v. Mississippi, 297 U.S. 278 (1936).
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self-incrimination.92 (This view has not been followed,93 and Brown
has been understood as applying the due process clause because the
5th Amendment had not yet been held applicable to the states. I cite it
here only to show that a prior Supreme Court decision, of which
Justice Thomas was aware, read the text of the self-incrimination
narrowly to apply only to in-court testimony by the defendant.)
Justice Thomas cites several cases — including Brown — to
support his view that the privilege does require the exclusion of
statements compelled by police interrogations as well as testimony
compelled by judges, but that it does not prohibit the compulsion
itself. As we shall see, those cases (and others, not cited by Thomas)
are inconsistent and inconclusive as to the proper interpretation of the
privilege. By citing judicial precedents, however, Justice Thomas
seemed to acknowledge that the text alone is not dispositive.
According to Justice Thomas and the other Justices who joined his
opinion, precedent matters as well — at least sometimes. Justices
Thomas and Scalia have argued that precedent should be ignored,
indeed overruled, when it is inconsistent with the text — at least
sometimes.94 This time, these justices chose to rely primarily on
92
Brown is a confusing opinion because it was a state case decided before the
privilege was ruled applicable to the states [elaborate]
93
See Malloy v. Hogan, 378 U.S. 1 (1964), at 6-7 (citations omitted):
Brown v. Mississippi was the first case in which the Court held
that the Due Process Clause prohibited the States from using the accused’s
coerced confessions against him. The Court in Brown felt impelled, in
light of Twining, to say that its conclusion did not involve the privilege
against self-incrimination. “Compulsion by torture to extort a confession
is a different matter.” But this distinction was soon abandoned, and today
the admissibility of a confession in a state criminal prosecution is tested by
the same standard applied in federal prosecutions since 1897, when, in
Bram v. United States, the Court held that “in criminal trials, in the courts
of the United States, wherever a question arises whether a confession is
incompetent because not voluntary, the issue is controlled by that portion
of the Fifth Amendment to the Constitution of the United States,
commanding that no person ‘shall be compelled in any criminal case to be
a witness against himself.’” Under this test, the constitutional inquiry is
not whether the conduct of state officers in obtaining the confession was
shocking, but whether the confession was “free and voluntary: that is, [it]
must not be extracted by any sort of threats or violence, nor obtained by
any direct or implied promises, however slight, nor by the exertion of any
improper influence….” In other words the person must not have been
compelled to incriminate himself. We have held inadmissible even a
confession secured by so mild a whip as the refusal, under certain
circumstances, to allow a suspect to call his wife until he confessed.
94
Scalia reportedly said the following about Thomas: “He does not believe in stare
decisis, period…. If a constitutional line of authority is wrong, he would say let’s
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precedent — at least selectively — rather than literal textual analysis,
in concluding that police may not testify about incriminating
statements they compelled the defendant to make prior to his trial.95
But they chose to rely primarily on literal textual analysis in
concluding that a person — in this case Martinez — had no right not
to be compelled or coerced to answer self-incriminating questions, so
long as his answers could not be admitted against him at a criminal
trial in which he was a defendant.
To be sure, there is considerable precedent — Both before
and after Brown — supporting the view that evidence of pre-trial
coerced confessions cannot be admitted against a criminal defendant
at his trial, despite the absence of specific textual support for that
conclusion in the relevant words, of the Fifth Amendment. There is
no direct precedential support for the conclusion that the privilege
against self-incrimination is violated at the point when compulsion is
employed, rather than at the point when its fruits are admitted at the
criminal trial.96 But nor is there any direct support for the opposite
get it right. I wouldn’t do that.” Ken Foskett, Judging Thomas: The Life and Times
of Clarence Thomas (New York: HarperCollins, 2004), p. 281-82. Yet, Scalia
wrote the following in a dissent:
With some reservation concerning decisions that have become so
embedded in our system of government that return is no longer possible …
I agree with Justice Douglas:
A judge looking at a constitutional decision may have
compulsions to revere past history and accept what was once
written. But he remembers above all else that it is the
Constitution which he swore to support and defend, not the gloss
which his predecessors may have put on it.
South Carolina v. Gathers, 490 U.S. 805, 825 (1989) (Scalia dissenting).
95
They also purported to rely on “the text” but failed to explain how any plausible
reading of the text alone would require the exclusion of out of court coerced
confessions testified to by a witness other than the defendant.
96
In his dissenting opinion, Justice Kennedy said that the majority position,
“finds some support in a single statement in United States v. VerdugoUrquidez, 494 U.S. 259, 264 (1990) (“Although conduct by law
enforcement officials prior to trial may ultimately impair that right [against
compelled self-incrimination], a constitutional violation occurs only at
trial”). That case concerned the application of the Fourth Amendment, and
the extent of the right secured under the Self-Incrimination Clause was not
then before the Court. Ibid. Furthermore, Verdugo-Urquidez involved a
prosecution in the United States arising from a criminal investigation in
another country, id., at 274-275, so there was a special reason for the Court
to be concerned about the application of the Clause in that context, id., at
269 (noting the Court had “rejected the claim that aliens are entitled to
Fifth Amendment rights outside the sovereign territory of the United
States” (citing Johnson v. Eisentranger, 339 U.S. 763 (1950))). In any
event, the decision cannot be read to support the proposition that the
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view. It was an open question prior to Martinez,97 though there was
language - - dictum - - that could support either view98.
In deciding to employ a largely textual analysis, the Court
disregarded earlier precedents pertaining to the proper mode of
interpreting the cryptic words of the Fifth Amendment. An 1897
(pre-Brown) Supreme Court decision interpreting the privilege in a
federal criminal case expressly considered whether it only prohibited
the government from calling a defendant as a witness at his own
criminal trial — the literal meaning of the words used in the Fifth
Amendment — or whether it also prohibited the government from
introducing, through other witnesses, evidence of statements the
defendant was compelled to make prior to trial. The Court rejected
the literal interpretation and concluded that “the generic language of
the Amendment was but a crystallization of the doctrine as to [out-ofcourt] confessions, well settled when the Amendment was
adopted….”99 The Court went on to say that:
application of the Clause is limited in the way JUSTICE SOUTER and
JUSTICE THOMAS describe today.
A recent case illustrates that a violation of the Self-Incrimination
Clause may have immediate consequences. Just last Term, nine Justices
all proceeded from the premise that a present, completed violation of the
Self-Incrimination Clause could occur if an incarcerated prisoner were
required to admit to past crimes on pain of forfeiting certain privileges of
being assigned harsher conditions of confinement. McKune v. Lile, 536
U.S. 24 (2002); id., at 48 (O’CONNOR, J., concurring in judgment); id., at
54 (STEVENS, J., dissenting). Although there was disagreement over
whether a violation occurred in the circumstances of that case, there was no
disagreement that a present violation could have taken place. No Member
of the Court suggested that the absence of a pending criminal proceeding
made the Self-Incrimination Clause inquiry irrelevant.
This is not to say all questions as to the meaning and extent of the
Clause are simple of resolution, or that all of the cited cases are easy to
reconcile. Many questions about the application of the Self-Incrimination
Clause are close and difficult. There are instances, moreover, when
incriminating statements can be required from a reluctant witness, see, e.g.,
Gardner, supra, at 276, and others where information may be required
even absent a promise of immunity, see, e.g., Shapiro v. United States, 335
U.S. 1, 19 (1948). JUSTICE SOUTER and JUSTICE THOMAS are
correct to note that testimony may be ordered, on pain of contempt, if
appropriate immunity is granted. It does not follow that the Clause
establishes no present right. The immunity rule simply shows that the right
is not absolute.”
97
See Murphy v. Waterfront Commission, 378 U.S. 52 (1964), 104 n. 6.
98
Cite Language in cases
99
Bram v. United States, 168 U.S. 532, 543 (1897).
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The well settled nature of the rule in England at the time of the
adoption of the Constitution and of the Fifth Amendment, and
the intimate knowledge had by the framers of the principles of
civil liberty which had become a part of the common law,
aptly explain the conciseness of the language of that
Amendment.100
In other words, the “generic” and “concise[]” constitutional text did
not exhaust its intended or understood meaning. Its future
applications had been left “to be evolved from the facts of each
particular case”101 — a process well-known to the common law
framers of the Constitution.
The “generic” and “concise” words of the privilege had to be
read against the background of law and practice at the time of the
enactment of the Bill of Rights. They could not be wrenched out of
their literal context and read abstractly as if they were simply a
collection of syllables, as Thomas essentially did. Put another way,
these exact same words would mean something very different if they
had been written by the framers of the French, German, Russian or
Louisiana [check this] constitutions, since those framers would
understand these same words to mean something quite different
because of their very different legal systems. As Wittgenstein once
observed, “If a lion could talk, we could not understand him.”102 As
we shall soon see, if a framer of the 5th Amendment could talk about
how he understood the criminal justice system, and how the words of
the 5th Amendment fit into it, we would have considerable difficulty
understanding him, as we shall soon see when we examine the nearcontemporaneous opinion of Chief Justice John Marshall in the Aaron
Burr case..
In focusing primarily on the text, the Court also disregarded,
in the words of Justice Kennedy, “the understanding that has
prevailed for generations now,” namely that Americans have a “right
to remain silent,” or at least “a right not to be compelled to
incriminate themselves.” Even the late Chief Justice William
Rehnquist — who just three years earlier had characterized the
100
168 U.S. 532, 548.
168 U.S. 532, 549. The Court used the word “evolved” in the context of “the
courts [having] left the rule to be evolved,” but the framers understood that courts
would be playing that role, especially with a rule so closely related to the criminal
trial process.
102
Ludwig Wittgenstein, Philosophical Investigations: The German Text, With a
Revised English Translation, (Oxford: Blackwell, 2002), p. 241.
101
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Miranda warning as part of American culture — joined the Thomas
opinion, 103 as did Justice Scalia who just four years earlier had
mocked those who feigned ignorance of their well-known “right to
remain silent.”
To be sure, the right to remain silent has never been thought to
be unconditional or unlimited, as we shall see in the next chapter.
Even if there were such a right, it would be difficult to define its
parameters. What exactly would a “right to remain silent” entail?
When would it come into operation? Would it exist even in the
absence of compulsion or coercion? Or would it merely provide a
shield against the government’s power to compel or coerce selfincrimination? But, regardless of how the right may be defined and
limited, most Americans would be shocked to learn that the 5th
Amendment is totally silent on, and utterly irrelevant to, any claim
not to be coerced by the police into making self-incriminating
statements. Justice Kennedy was correct in observing that:
The conclusion that the Self-Incrimination Clause is not
violated until the government seeks to use a statement in some
later criminal proceeding strips the Clause of an essential part
of its force and meaning. This is no small matter. It should
come as an unwelcome surprise to judges, attorneys, and the
citizenry as a whole that if a legislative committee or a judge
in a civil case demands incriminating testimony without
103
Chief Justice Rehnquist was all over the lot when it came to interpreting the
privilege against self-incrimination. In a 1990 case, United States v. VerdugoUrquidez, 494 U.S. 259, involving the Fourth Amendment, he wrote the following
dictum about the Fifth Amendment:
Before analyzing the scope of the Fourth Amendment, we think it
significant to note that it operates in a different manner than the Fifth
Amendment, which is not at issue in this case. The privilege against selfincrimination guaranteed by the Fifth Amendment is a fundamental trial
right of criminal defendants. Although conduct by law enforcement
officials prior to trial may ultimately impair that right, a constitutional
violation occurs only at trial. The Fourth Amendment functions
differently. It prohibits “unreasonable searches and seizures” whether or
not the evidence is sought to be used in a criminal trial, and a violation of
the Amendment is “fully accomplished” at the time of an unreasonable
governmental intrusion. For purposes of this case, therefore, if there were
a constitutional violation, it occurred solely in Mexico. Whether evidence
obtained from respondent’s Mexican residences should be excluded at trial
in the United States is a remedial question separate from the existence vel
non of the constitutional violation.
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), at 264 (citations omitted).
Taking his opinions together, they seem to mean that suspects in custody have a
constitutional right under Miranda to be told that they have a constitutional right to
remain silent—which they don’t in fact have!
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offering immunity, and even imposes sanctions for failure to
comply, that the witness and counsel cannot insist the right
against compelled self-incrimination is applicable then and
there. Justice Souter and Justice Thomas, I submit, should be
more respectful of the understanding that has prevailed for
generations now. To tell our whole legal system that when
conducting a criminal investigation police officials can use
severe compulsion or even torture with no present violation of
the right against compelled self-incrimination can only
diminish a celebrated provision in the Bill of Rights. A
Constitution survives over time because the people share a
common, historic commitment to certain simple but
fundamental principles which preserve their freedom.
Today’s decision undermines one of those respected
principles.104
Surely this widespread and long-term understanding of “the right to
remain silent” in the face of police or judicial compulsion should be
given some weight in interpreting the privilege, especially since the
words alone — stripped of context and understanding — provides an
even narrower meaning than the one the majority is prepared to
accept. This view, that the widespread understanding of a
constitutional provision that “has prevailed for generations now”
should be taken into account, was accepted by a majority of the
Supreme Court just three years prior to Martinez, in the decision
reaffirming Miranda.105
In response to this argument, the majority makes the peculiar
claim that “the core” rights protected by the privilege are limited to
the defendant not being compelled to be an actual witness, and not
having his coerced or compelled confessions admitted against him at
his own criminal trial. But to “safeguard” those “core” rights, the
Court has “created prophylactic rules.” These rules, according to the
majority, have a somewhat lower constitutional status and include the
following:

104
“No ‘penalty’ may ever be imposed on someone who
exercises his core Fifth Amendment right not to be a ‘witness’
against himself in a ‘criminal case.’ Griffin v. California 380
U.S. 609 (1965).”
Chavez v. Martinez, 538 U.S. 760 (2003), at 793-94 (Kennedy concurring in part
and dissenting in part).
105
Dickerson v. United States, 530 U.S. 428 (2000)
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
“Immunity [which] is not a right secured by the text of the
Self-Incrimination Clause, but rather a prophylactic rule we [?
sic] have constructed to protect the Fifth Amendment’s right
from invasion.”106

“We have likewise established the Miranda exclusionary rule
as a prophylactic measure to prevent violations of the right
protected by the text [sic] of the Self-Incrimination Clause –
the admission into evidence in a criminal case of a confession
obtained through coercive custodial questioning.”
Each of these references to the distinction between “core rights” and
“prophylactic rules” is wrong.
First, the Court fails to address the question why the exclusion
of confessions coerced by the police or compelled by judges prior to
the criminal trial – a result not required by the text of the 5th
Amendment – is a “core”, and not a “prophylactic” rule? What makes
some non-textual extensions of the words core and others
prophylactic? Surely the rule forbidding a penalty from being
imposed on a defendant who exercises his textual right not to be a
witness against himself is at least as close to the core as is the
exclusion of evidence produced by pre-trial coercion107. If the
Miranda exclusionary rule is indeed “a prophylactic measure” rather
than a core of the privilege, then an act of Congress, substituting other
“prophylactic measure[s]” should have been given far more weight
than it was given in Dickerson.
As far as immunity is concerned, whatever else it may be it is
neither a “right” nor a “prophylactic measure.” It is a legislative
authorization of immunity in an exercise of power designed to
neutralize a claim of privilege under the 5th Amendment. Moreover,
as we shall soon see, the logic of the majority opinion would seem to
eliminate any semblance of a “right” to immunity.
106
It was the legislature that constructed—enacted—immunity provisions. The
Courts merely ruled that if a person has immunity that is coterminous with his
privilege, he can be compelled to answer questions that would otherwise be
incriminating. This is hardly “a prophylactic rule … to protect the Fifth
Amendment’s right from invasion.” Rather, it is a clever legislative mechanism
designed to aid prosecutors in obtaining otherwise privileged information.
107
This is especially so since prior to Miranda, state compulsion cases were
generally decided under the Fourteenth Amendment’s due process clause, rather
than the Fifth Amendment’s privilege against self-incrimination.
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Chapter 2: The limits of precedent: Which way does “immunity” cut?
The immunity precedent and analogy
In addition to its rather sterile and unconvincing textual
analysis – which is either too narrow or too broad – the plurality
opinion invokes the concept of immunity as a precedential analogy.
On its face, this argument seems like a slam-dunk. After all, if a
person’s “right to remain silent” may be trumped by simply granting
him derivative use immunity – namely a legislatively authorized and
judicially enforced promise that whatever self-incriminating
statements he is compelled by the law to make will not be used
against him at his subsequent criminal trial108 -- then he never really
had an absolute constitutional right to remain silent. All he ever had
was a constitutional right not to have compelled testimony used
against him at this criminal trial. 109 This follows from the universally
accepted view that a statute may not trump a constitutional right.
Since immunity is statutory and it does apparently trump any socalled right to remain silent, that right cannot be constitutional. End
of argument!
But it too is an argument that goes too far. If there were
indeed no constitutional right to remain silent, why would there need
to be legislation to trump it? Why couldn’t the court – even absent an
immunity statute – simply compel any person (other than a criminal
defendant at his own criminal trial) to answer any self-incriminatory
question? The consequences of such compulsion would be the
constitutionally required exclusion of the answer in his subsequent
criminal case, but the person would have no right, even without a
grant of immunity, to refuse to answer any otherwise proper question
put to him in a civil case, a legislative hearing, or someone else’s
criminal trial. This would seem to follow if he indeed had no right
either to remain silent or not to be compelled to answer selfincriminatory questions in the first place. His only right would be the
subsequent remedy of exclusion, which he retains. To be sure, the
person being compelled might be required to raise some objection at
the time of the compulsion in order to preserve the issue for trial, or to
make it clear that he did not volunteer the information. But that is a
This assures that testimony compelled by a judge before the defendant’s
criminal trial cannot – under the 5th Amendment – be admitted against him at his
criminal trial. As I previously showed, this result cannot be justified by the text of
the 5th Amendment alone.
109
Nor will its fruits. That is what derivative means.
108
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separate issue from the constitutional requirement of a statutory grant
of immunity.
Yet the Supreme Court has been crystal clear – for more than
a century – that absent a formal grant of immunity, a person has an
absolute right to remain silent when a judge or another public official
seeks to compel him to answer incriminating questions. As the
Supreme Court said in Kastigar v. United States:110 “The
privilege…usually operates to allow a citizen to remain silent when
asked a question requiring an incriminatory answer.”111 Indeed, the
Supreme Court has been clear that the scope of the immunity must be
at least “coterminous” with the scope of the privilege, or else the
person retains the right to remain silent. These cases rest on the
assumption – sometimes expressed, more often implied – that absent a
grant of immunity, a person has a constitutional right to remain silent
in the face of an incriminating question. Indeed, the Supreme Court,
in one of its foundational cases with regard to the privilege—holding
it fully applicable to the states—used the following broad language:
The Fourteenth Amendment secures against state invasion the
same privilege that the Fifth Amendment guarantees against
federal infringement—the right of a person to remain silent
unless he chooses to speak in the unfettered exercise of his
own will, and to suffer no penalty … for such silence.112
Numerous other decisions, written by the widest array of Justices
across the ideological and political spectrum have defined the Fifth
Amendment privilege to include “the right to remain silent,” in the
absence of a grant of immunity.113
Has a majority of the Court now overruled, sub silentio, this
long line of cases? Can a judge now compel a witness in a civil case,
a legislative committee, or someone else’s criminal trial to answer
incriminating questions, even absent a formal grant of immunity?114
Why not, if the privilege includes only an exclusionary right and not
any primary right to remain silent? Justice Kennedy raised this issue
110
406 U.S. 441 (1972).
406 U.S. 441, at 461 (emphasis added).
112
Malloy v. Hogan, 378 U.S. 1 (1964), at 8.
113
See appendix of more than 100 Supreme Court opinions referring to a right to
remain silent.
114
You can be sure that in my next criminal case in which the defense seeks the
testimony of a witness who pleads the fifth, I will raise the argument that under
Martinez, the witness has no right to refuse to testify - - but only a right to have his
testimony and its fruits excluded at any subsequent trial. (See infra pp. _______)
111
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during the oral argument, asking the lawyer for the policeman the
following question:
Well, suppose in a civil case, the judge orders the witness
confined to custody until he testifies in violation of what we
can say in common parlance is his Fifth Amendment right to
self-incrimination. Is that not a violation then and there to – to
confine the – the defendant until he testifies?115
In his answer, the lawyer said the following:
I suggest, Justice Kennedy, that the result – that the holding in
Murphy against the Waterfront Commission is inexplicable if
you believe, as the Ninth Circuit does, that it is sufficient
simply to coerce an otherwise incriminating statement because
in Murphy against the Waterfront Commission, the holding of
that case is that the State court was correct in requiring the
witness to testify even though there wasn’t a statute that
protected him against incrimination because the Fifth
Amendment itself provides the fail-safe that if you are coerced
into giving an otherwise incriminating statement, it cannot be
used against you.116
In fact, the actual holding of Murphy was quite different. The
Court ruled that “[a]t the time they refused to answer” the
incriminating questions put to them by the state, the witnesses “had a
reasonable fear,” based on the existing case law, “that the federal
authorities might use the answers against them in connection with a
federal prosecution.”117 Accordingly, it reversed the contempt
conviction, and “afforded [the witnesses] an opportunity,” in light of
the newly announced rule granting them derivative use immunity, “to
115
Justice Kennedy’s concern that the majority opinion might make it possible to
imprison for contempt an unimmunized witness who refused to answer an
incriminating question is equally applicable to his own opinion. After all, he and
his two dissenting colleagues did not conclude that there was a stand-alone right not
to be coerced or compelled into making a self incriminating statement. This would
seem to suggest that absent the use of torture or its equivalence, the government can
compel a witness to make incriminating statements so long as it then does not use
those statements or its fruits against the witness in a subsequent criminal case.
The need for formal immunity would seem as irrelevant to Justice Kennedy’s
approach as it would be to Justice Thomas’ approach.
116
Lawrence S. Robbins, oral argument for Chavez v. Martinez, 2002 U.S. TRANS
LEXIS 69, at p. 5 (emphasis added).
117
Murphy v. Waterfront Commission, 378 U.S. 52 (1964), at 79-80.
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answer the questions.”118 In other words, before a witness can be
lawfully compelled to answer an incriminating question—or be held
in contempt for refusing to do so—he must at the very least know that
the answer could not be used against him.119 This certainly suggests
that there is a constitutional right to remain silent in the absence of a
formal assurance of immunity. In fact, the Court in Murphy
acknowledged—in a footnote—that there may be some “conceptual
difficulty of pinpointing the alleged violation of the privilege on
‘compulsion’ or ‘use’”120 — the precise issue that eventually came
before the Court in Martinez some 40 years later. The Court in
Murphy stated that “The constitutional privilege against selfincrimination has two primary interrelated facets: The Government
may not use compulsion to elicit self-incriminating statements; and
the Government may not permit the use in a criminal trial of selfincriminating statements elicited by compulsion.”121 The Court said,
however, that since the states and the federal government are now
both constitutionally bound by the privilege, it was not necessary to
be “concern[ed]” with deciding the precise point of impact of the
privilege—compulsion or use.122 It also said that it “will not do … to
assign one isolated policy to the privilege, and then to argue that since
‘the’ policy may not be furthered measurably by applying the
privilege across state-federal lines, it follows that the privilege should
not be so applied.”123
The Court in Murphy articulated several important policies
underlying the privilege:
It reflects many of our fundamental values and most noble
aspirations: our unwillingness to subject those suspected of
crime to the cruel dilemma of self-accusation, perjury or
contempt; our preference for an accusatorial rather than
inquisitorial system of criminal justice; our fear that selfincriminating statements will be elicited by inhumane
treatment and abuses; our sense of fair play which dictates “a
118
Murphy v. Waterfront Commission, 378 U.S. 52 (1964), at 80.
Moreover that case arose in the context of a federalism problem, where
compromises in the interests of comity are often made.
120
Murphy v. Waterfront Commission, 378 U.S. 52 (1964), at 57, n. 6.
121
Murphy v. Waterfront Commission, 378 U.S. 52 (1964), at 57, n. 6 (citations
omitted) (emphasis added).
122
Murphy v. Waterfront Commission, 378 U.S. 52 (1964), at 57, n. 6. In the
interests of full disclosure, I must acknowledge that as Justice Goldberg’s law clerk
in 1964, I drafted that footnote.
123
Murphy v. Waterfront Commission, 378 U.S. 52 (1964), at 56-57, n. 5.
119
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fair state-individual balance 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.”124
Murphy does not support the majority position in Martinez,
despite the glib response given by Chavez’s lawyer to Justice
Kennedy’s question. If anything, it lends at least some verbal support
to the conclusion that the Fifth Amendment contains “two primary”
limitations on governmental actions: 1) it may “not use compulsion to
elicit self-incriminating statements;” and 2) it may not “use” such
statements in a criminal trial.
Murphy does, however, lend some support to the argument
that - - at least in the context of federalism - - there may be no
requirement of an immunity statute in order to compel selfincrimination. All that may be required is that the witness be told
authoritatively by the judge, before he is compelled to answer the
question, that either the constitution or a statute guarantees him
derivative use immunity. Absent that formal assurance, he retains his
constitutional right to remain silent.
The basic right to remain silent in the absence of formal
immunity was reaffirmed in Kastigar, decided eight years after
Murphy. Kastigar reaffirmed the right of witnesses to assert the
privilege against self-incrimination “in any proceeding, civil or
criminal, administrative or judicial, investigatory or adjudicatory; and
it protects against any disclosures that the witness reasonably believes
could be used in a criminal prosecution [against him] or could lead to
other evidence that might be so used.”125 This formulation certainly
suggests that there is a basic right to remain silent in response to
incriminating questions, as the Court had plainly articulated in the
foundational case of Malloy v. Hogan.126 The Court then went on to
analyze how immunity statutes impact this right:
Immunity statutes, which have historical roots deep in
Anglo-American jurisprudence, are not incompatible with
these values. Rather, they seek a rational accommodation
124
Murphy v. Waterfront Commission, 378 U.S. 52 (1964), at 55 (citations
omitted).
125
Kastigar v. United States, 406 U.S. 441, at 445 (1972) (notes omitted).
126
Malloy v. Hogan, 378 U.S. 1 (1964).
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between the imperatives of the privilege and the legitimate
demands of government to compel citizens to testify….127
The constitutional inquiry, rooted in logic and history,
as well as in the decisions of this Court, is whether the
immunity granted under this statute is coextensive with the
scope of the privilege. If so, petitioners’ refusals to answer
based on the privilege were unjustified, and the judgments of
contempt were proper, for the grant of immunity has removed
the dangers against which the privilege protects. If, on the
other hand, the immunity granted is not as comprehensive as
the protection afforded by the privilege, petitioners were
justified in refusing to answer, and the judgments of contempt
must be vacated.128
The Court then went on to rule that derivative use immunity is
coextensive with the scope of the privilege:
This is a very substantial protection, commensurate
with that resulting from invoking the privilege itself. The
privilege assures that a citizen is not compelled to incriminate
himself by his own testimony. It usually operates to allow a
citizen to remain silent when asked a question requiring an
incriminatory answer. This statute, which operates after a
witness has given incriminatory testimony, affords the same
protection by assuring that the compelled testimony can in no
way lead to the infliction of criminal penalties.129
In other words, a citizen has the right to remain silent unless he has
formally been given — either by the legislature or the court — a
functionally coextensive right via the mechanism of derivative use
immunity. That is the Kastigar rule, a rule that has been applied now
in a long line of cases.130
Kastigar certainly does not support Justice Thomas’ inclusion
of “immunity” as a “prophylactic” right analogous to the Miranda and
Griffin rules. Immunity statutes, as Justice Powell correctly
Significantly, immunity statutes do not “seek a rational accommodation”
between the privilege and the constitutional rights of other criminal defendants to
secure exculpatory evidence under the 6th Amendment [EXPAND].
128
Kastigar v. United States, 406 U.S. 441, at 445-46, 449 (notes omitted) (citation
omitted).
129
Kastigar v. United States, 406 U.S. 441, at 461 (note omitted) (emphasis added).
130
FOOTNOTE ON BALSYS CASE. [ALAN: WHAT ABOUT BALSYS DO
YOU WANT DISCUSSED?]
127
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characterized them, empower the government to compel testimony it
would otherwise be unable to elicit. They reflect “a rational
accommodation” — a compromise — “between the imperatives of the
privilege and the legitimate demands of government to compel
citizens to testify.” Hardly a “right” or “prophylactic” protection! It
is no wonder that few witnesses seek derivative use immunity (as
opposed to transactional immunity). It is imposed on them, generally
against their will. This is not the case with true rights.
Justice Stevens, in his opinion in Martinez, seemed to worry
that the majority has indeed overruled the entire Kastigar line of
immunity cases that presupposes a constitutional right to remain silent
in the absence of coterminous immunity. He observed that “[i]t
should come as an unwelcome surprise to judges, attorneys, and the
citizenry as a whole that if a legislative committee or a judge in a civil
case demands incriminating testimony without offering immunity,
and even imposes sanctions for failure to comply, that the witness and
counsel cannot insist the right against compelled self-incrimination is
applicable then and there.”
It is possible, of course, that a majority of Justices will
eventually rule that although there is no absolute stand-alone right to
remain silent, there is some sort of conditional right. In other words,
absent a formal grant of appropriate immunity, every witness has the
right to remain silent, but that right disappears when he is given such
immunity. But what is a conditional constitutional right and how can
a legislative enactment, namely, the authorization to grant immunity,
trump any right granted by the Constitution? One possible answer is,
it doesn’t! The person being compelled to answer with a grant of
immunity knows that his answer is no longer self-incriminating, since
there is an advanced legislative or judicially announced constitutional
guarantee that it will never be used against him in any subsequent
criminal case. In the very different context of the Martinez case, the
person had no such advanced legislative or judicial guarantee. So far
as Martinez knew – if he “knew” anything, considering the pain and
fear he was expressing – he was being compelled to confess to the
serious crimes of resisting arrest, and taking a gun from and pointing
at a police officer. Neither the police officer nor Martinez understood
that the statement he was being coerced into making could not be
used against him if he were charged with a crime. The Thomas
opinion says that this doesn’t matter:
We fail to see how Martinez was any more “compelled in any
criminal case to be a witness against himself” than an
immunized witness forced to testify on pain of contempt. One
difference, perhaps, is that the immunized witness knows that
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his statements will not, and may not, be used against him,
whereas Martinez likely did not. But this does not make the
statements of the immunized witness any less “compelled”
[sic?]131 and lends no support to the Ninth Circuit’s conclusion
that coercive police interrogations, absent the use of the
involuntary statements in a criminal case, violate the Fifth
Amendment’s Self-Incrimination Clause. Moreover, our cases
provide that those subjected to coercive police interrogations
have an automatic protection from the use of their involuntary
statements (or evidence derived from their statements) in any
subsequent criminal trial…. This protection is, in fact,
coextensive with the use and derivative use immunity
mandated by Kastigar when the government compels
testimony from a reluctant witness. Accordingly, the fact that
Martinez did not know his statements could not be used
against him does not change our view that no violation of the
Fifth Amendment’s Self-Incrimination Clause occurred
here.132
There are so many logical, empirical, precedential and historical
errors contained in this one paragraph, that it is difficult to know
where to begin. First, it begs the question of why immunity is
required—if it still is—in the context of judicial compulsion. If a
judge were to simply compel a witness to answer incriminating
questions, without mentioning immunity, exclusion of that testimony
and its fruits would be just as “automatic,” under the Thomas
interpretation of the privilege. Why then, is a formal grant of
immunity required to engage in the redundant act of assuring
subsequent exclusions when such exclusions are constitutionally
“automatic” anyway? Or to ask the questions somewhat differently,
why is a formal grant of immunity not required before the police may
compel a suspect to make a self-incriminating statement? Why does a
suspect in police custody not have the same conditional right to
remain silent as a witness in a legal proceeding? And why does such
a conditional privilege not require a formal grant of immunity to
overcome it?
To test Justice Thomas’ analogy between formal immunity
and police coercion, consider what the situation would be like if the
Justice Thomas must have meant to say “Any less ‘self-incriminating’,” rather
than “any less compelled.” Surely immunity doesn’t eliminate the compulsion
element; it is, however, supposed to eliminate the self-incrimination element.
132
538 U.S. 760, at 769-70 (citations omitted).
131
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legislature were to enact a statute (or a judge issue an order) explicitly
authorizing the sort of compulsion employed against Martinez –
according to Justice Stevens “the functional equivalent [of] torture
methods” – but providing the sole remedy of exclusion. This would
be something like the “ticking bomb torture warrant” proposal I made
several years ago that generated much controversy and general
disapproval.133 No legislature has seriously considered “legitimating”
torture by enacting a “torture warrant” or “torture immunity”
procedure. The reason why legislators are willing to authorize grants
of immunity in the context of judicial and other formal proceedings,
is because they are prepared to say that it is right for a government
official to compel answers to otherwise incriminatory questions under
a judicial threat of contempt if everyone knows that these answers
cannot be used against the person in a criminal case, and are thus no
longer incriminatory. The same legislators would be far more
reluctant to say that it is right to torture a person into confessing any
crime (even a trivial crime) simply because the confession would be
excluded from a subsequent criminal trial. Immunity may well
eliminate the gravamen (or at least a gravamen) of the selfincrimination violation in the context of an orderly judicial or other
formal proceeding, but it would not eliminate it in the context of
torture or other forms of extreme coercion. The visual image of a
violation of the privilege for most Americans remains the police
beating or torturing a confession out of a person in their custody – the
old “third degree.” And, as we shall see, the founding generation
understood the privilege as being directly related to concerns about
the introduction of “judicial torture.”134
Moreover, it would seem to follow from the Thomas analogy
that once a person was given immunity, he could be compelled by any
means to provide incriminating evidence. Yet the only means
available by law is the threat of contempt, fine, and imprisonment. If
these means fail—as they did, for example, in the well-known case of
Susan McDougal—could the state then resort to physical compulsion,
See Alan M. Dershowitz, “Is It Necessary to Apply ‘Physical Pressure’ to
Terrorists — And to Lie About It?,” 23 Israel Law Review 193 (1989); Alan M.
Dershowitz, Why Terrorism Works (New Haven: Yale University Press, 2002),
chap. 4; and Alan M. Dershowitz, “Is There a Torturous Road to Justice?” Los
Angeles Times, November 8, 2001, part 2, p. 19. [ALAN: DO YOU WANT TO
LIST ARTICLES CRITICIZING YOUR PROPOSAL?]
134
Eben Moglen, “The Privilege and Common Law Criminal Procedure: The
Sixteenth to the Eighteenth Centuries,” in R.H. Helmholz, et al., The Privilege
Against Self-Incrimination: Its Origins and Developments (Chicago: The
University of Chicago Press, 1997), pp. 135, 136.
133
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even torture? Could it compel the reluctant witness to be injected
with truth serum? Could it threaten to kill him? If Justice Thomas’s
analysis of the privilege is taken to its logical conclusion, the answer
would be yes—at least under the privilege.135 Yet no one would
seriously consider authorizing torture, truth serum, or death threats
following a grant of immunity and the failure of imprisonment to
compel the testimony in routine cases.
Going back to Justice Thomas’ narrow reading of the text of
the privilege, it would seem to support the conclusion that immunity
is not constitutionally required before a witness can be compelled to
answer self-incriminating questions. The text limits the privilege to
“any criminal case.” In a civil case or a legislative hearing, there is
no textual prohibition against compelling testimony. And since
compelled or coerced testimony will - - according to Thomas - - be
“automatically" excluded from “any criminal case” in which the
witness is a defendant, it would follow that a formal grant of
immunity is no longer required as a prerequisite for imprisoning a
witness who refuses to provide answers to self-incriminating
questions.
Justice Thomas’s analogy between the kind of coercive
interrogation employed in the Martinez case and a legislative grant of
immunity is deeply flawed, despite Justice Thomas’s confident
assertion that there is no difference between compelling “an
immunized witness” to “testify on pain of contempt,” and torturing a
suspect into making self-incriminating statements, giving him “an
automatic protection from [their use] in any subsequent criminal
trial.” There must be a constitutionally significant difference between
the lawful act of a legislature in explicitly authorizing immunity, and
the unlawful and unauthorized crime of a rogue policeman beating up
a citizen, even if that unlawful act may have a consequence similar to
that resulting from the lawful grant of immunity.
Justice Thomas is also wrong in confidently asserting that the
protection in the case of a police beating is “automatic.” Any
experienced criminal lawyer knows that exclusion is anything but
“automatic” in such cases. The fact that immunity has been given to a
witness cannot be disputed by the prosecution. It is part of a court
record. It shifts a heavy burden of proof to the prosecution to show an
135
If contempt is deemed criminal, then the prohibition of cruel and unusual
punishment might come into play (in addition to due process), but civil contempt
might not be categorized as punitive. These distinctions, though highly
questionable, are part of the “labeling game” the Supreme Court often plays.
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independent source for all of its evidence. [CITE NORTH CASE.
Alex has filled this in in Memo 15 and is waiting for Alan to
approve it.] A claim of police coercion, on the other hand, faces
difficult, sometimes insurmountable obstacles. Coercion is a matter
of degree. Immunity, on the other hand, has either been bestowed or
it hasn’t. You can’t be a “little bit immunized.” But you can be a
little coerced, and in close cases no one can know for certain where
the Courts will find excludable coercion or not.136 The alleged
coercion will often occur in a setting where the only witnesses, other
than the defendant, are police officers who have a motive to minimize
or deny the use of coercive methods. Having the defendant testify at
a coercion hearing is often risky.137 Judges often err on the side of
believing the police, especially when it is the defendant who has the
burden of proving coercion in most cases. As the late Chief Justice
Warren Burger wrote (when he was on the Court of Appeals): “[I]t
would be a dismal reflection on society to say that when the guardians
of its security are called to testify in court under oath, their testimony
must be viewed with suspicion.”138 An experienced trial judge, Irving
Younger, disagreed: “With all possible deference, I disagree. When
there are grounds for believing that ‘the guardians of its security’
sometimes give deliberately false testimony, it is no ‘dismal reflection
on society’ for Judges to acknowledge what all can see.”139 Judge
Younger ended up accepting the policemen’s testimony in the case
before him despite grave concerns about the pervasiveness of what
many New York police officers call “testilying.”
136
On several occasions, the U.S. Supreme Court has ruled that cases of coercion
did not rise to the level of being unconstitutional. For example, the court has ruled
that requiring an inmate to participate in a treatment program that includes
admitting criminal conduct — and having privileges revoked if he does not
participate — is not unconstitutional coercion. McKune v. Lile, 536 U.S. 24
(2002).
In another case, a police officer brandished a blackjack before an arrestee,
and a park foreman later slapped the suspect and knocked off his glasses. Soon
thereafter, the police questioned him and he confessed to murder. The U.S.
Supreme Court ruled that no unconstitutional coercion occurred. Stroble v.
California, 343 U.S. 181 (1952).
In a third case, police disallowed a detained suspect to call an attorney
while he was being interrogated. It was not until 5:00 a.m., after he had signed a
confession, that he was permitted to sleep. The Supreme Court again ruled this
conduct constitutional. Crooker v. California, 357 U.S. 433 (1958).
[ALAN: YOU HAD ASKED FOR EXAMPLES IN ADDITION TO
THE FIRST ONE. DO THESE LATTER TWO SUFFICE?]
137
FN explaining rules for exclusionary hearings. [ALAN: WHAT IS THE GIST
OF WHAT YOU WANT HERE?]
138
Bush v. United States, 375 F.2d 602 (1967), at 604.
139
People v. McMurty, 64 Misc. 2d 63 (1970).
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Even when the police interrogation is recorded - - which it
rarely is in instances of real coercion and physical abuse - - there will
be difficult issues of line-drawing and interpretation. Consider the
Martinez case itself. Although all the justices agreed that the
statements elicited from Martinez would have been inadmissible
against him had he been tried for a crime, there was considerable
disagreement about the nature and degree of the abuse that was tape
recorded. Justice Stevens agreed with the lower courts’
characterization [FILL IN – WHAT DO YOU WANT FILLED IN?].
Justice Thomas, on the other hand, tended to minimize the abuse
[FILL IN].
In Dickerson v. United States, Scalia opined, (Thomas joined) argued
that since Miranda we have explicitly, and repeatedly, interpreted that
decision as having announced, not the circumstances in which
custodial interrogation runs afoul of the Fifth or Fourteenth
Amendment, but rather only “prophylactic” rules that go beyond the
right against compelled self-incrimination. Of course the seeds of this
“‘prophylactic’ interpretation of Miranda were present in the decision
itself.”140 Justice Thomas, on the other hand, tended to minimize the
abuse [FILL IN]. Indeed, it is possible that Justice Thomas would
have found only a violation of Miranda’s “prophylactic rule” and not
necessarily an involuntary confession [CHECK].
If a defendant cannot prove that his confession was
“involuntary,” but can establish that no Miranda warnings were
given, the defendant certainly does not get the functional equivalent
of derivative use immunity. Even though the Court has ruled that
Miranda is a constitutional doctrine, it has also ruled that statements
obtained in violation of Miranda can be used to impeach a defendant
if he takes the stand, and their fruits can be used against him even if
he does not take the stand. Justice Thomas deceptively cites Oregon
v. Elstad141 to support his assertion that “our cases provide that those
subjected to coercive police interrogations have an automatic
protection from the use of their involuntary statements (or evidence
derived from their statements) in any subsequent criminal trial.”142
But he omits the reality that the case stands for a very different
proposition; the fruits of statements obtained merely in violation of
140
Dickerson v. United States, 530 U.S. 428 (2000), at 450 (Scalia, J. dissenting).
Oregon v. Elstad, 470 U.S. 298 (1985).
142
Chavez v. Martinez, 538 U.S. 760 (2003), at 769 (emphasis original); citing
Oregon v. Elstad, 470 U.S. 298 (1985), at 307-308.
141
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Miranda—which “creates a presumption of compulsion”143—may be
admitted against a defendant.
The majority in Kastigar recognized the difference between a
grant of immunity and a coerced confession:
[A] defendant against whom incriminating evidence has been
obtained through a grant of immunity may be in a stronger
position at trial than a defendant who asserts a Fifth
Amendment coerced-confession claim. One raising a claim
under this statute need only show that he testified under a
grant of immunity in order to shift to the government the
heavy burden of proving that all of the evidence it proposes to
use was derived from legitimate independent sources. On the
other hand, a defendant raising a coerced-confession claim
under the Fifth Amendment must first prevail in a
voluntariness hearing before his confession and evidence
derived from it become inadmissible.144
The trial dynamics are very different, as any experienced criminal
lawyer would know. Yet Justice Thomas rejects this reality and
accepts instead the highly questionable conclusion—previously
rejected by the Court—that a defendant who has been coerced into
making self-incriminating statements is in at least as favorable a
position as a defendant who has been compelled into making such
statements by a formal grant of immunity. Moreover, Justice Thomas
overrules this critical aspect of Kastigar without even mentioning it.
Indeed, he cites Kastigar in support of his conclusion that there is no
difference between a formal grant of immunity and the supposedly
automatic immunity that follows from police coercion, see pages 76970, when Kastigar explicitly says the opposite.
Even if the exclusion of coerced testimony were automatic—
which it is not—it does not follow, under the governing case law, that
a prediction of future judicial exclusion is the constitutional
equivalent of legislatively authorized formal immunity. The Supreme
Court addressed this precise issue in Pillsbury Co. v. Conboy145 and
ruled that a witness retained his right to remain silent even though it
was virtually certain that his answers—derived directly from
testimony he had given under a prior grant of immunity—would be
143
Oregon v. Elstad, 470 U.S. 298 (1985), at 307.
Kastigar v. United States, 406 U.S. 441, at 461-62 (notes omitted).
145
459 U.S. 248 (1983).
144
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excluded from his criminal trial as the derivative fruits of his earlier
immunity:
Unless the grant of immunity assures a witness that his
incriminating testimony will not be used against him in a
subsequent criminal prosecution, the witness has not received
the certain protection of his Fifth Amendment privilege that he
has been forced to exchange. No court has authority to
immunize a witness. That responsibility, as we have noted, is
peculiarly an executive one, and only the Attorney General or
a designated officer of the Department of Justice has authority
to grant use immunity. Nor should a court, at the time of the
civil testimony, predetermine the decision of the court in a
subsequent criminal prosecution on the question whether the
Government has met its burden of proving that “the evidence
it proposes to use is derived from a legitimate source wholly
independent of the compelled testimony.” Yet in holding
Conboy in contempt for his Fifth Amendment silence, the
District Court below essentially predicted that a court in any
future criminal prosecution of Conboy will be obligated to
protect against evidentiary use of the deposition testimony
petitioners seek. We do not think such a predictive judgment is
enough….
As the Court stated in Maness v. Meyers, compelling a
witness to testify in “reliance upon a later objection or motion
to suppress would ‘let the cat out’ with no assurance whatever
of putting it back.” We believe Conboy acted properly in
maintaining his silence in the face of the District Court's
compulsion order and by testing the validity of his privilege
on appeal.146
The court reiterated its Pillsbury holding in the 1998 case of United
States v. Balsys:
Of course, the judicial exclusion of compelled
testimony functions as a fail-safe to ensure that compelled
testimony is not admitted in a criminal proceeding. The
general rule requires a grant of immunity prior to the
compelling of any testimony. We have said that the prediction
that a court in a future criminal prosecution would be
obligated to protect against the evidentiary use of compelled
146
Pillsbury Co. v. Conboy, 459 U.S. 248 (1983), at 261-62 (citations omitted).
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testimony is not enough to satisfy the privilege against
compelled self-incrimination. Pillsbury Co. v. Conboy, 459
U.S. 248, 261…. The suggestion that a witness should rely on
a subsequent motion to suppress rather than a prior grant of
immunity “would [not] afford adequate protection. Without
something more, [the witness] would be compelled to
surrender the very protection which the privilege is designed
to guarantee.” This general rule ensures that we do not “let
the cat out with no assurance whatever of putting it back,” and
leaves the decision whether to grant immunity to the
Executive in accord with congressional policy, see Pillsbury,
supra, at 262.147
Yet Justice Thomas in Martinez ignores Pillsbury, citing only a
concurring opinion in that case, while overruling it sub silentio.148
The analogy between legislatively authorized formal
immunity and “automatic” exclusion that supposedly follows from
unlawful police coercion is not only incomplete, it is fundamentally
flawed. At best, the precedent of immunity cuts both ways in the
context of the Martinez decision.149 The immunity case law —
147
United States v. Balsys, 524 U.S. 666 (1998), at 683, n. 8 (some citations
omitted).
148
CITE
149
The dissent by Justice Thurgood Marshall in Kastigar also rejects the analogy
between immunity and coerced confessions:
In my view the Court turns reason on its head when it compares a
statutory grant of immunity to the “immunity” that is inadvertently
conferred by an unconstitutional interrogation. The exclusionary rule of
evidence that applies in that situation has nothing whatever to do with this
case. Evidence obtained through a coercive interrogation, like evidence
obtained through an illegal search, is excluded at trial because the
Constitution prohibits such methods of gathering evidence. The
exclusionary rules provide a partial and inadequate remedy to some
victims of illegal police conduct, and a similarly partial and inadequate
deterrent to police officers. An immunity statute, on the other hand, is
much more ambitious than any exclusionary rule. It does not merely
attempt to provide a remedy for past police misconduct, which never
should have occurred. An immunity statute operates in advance of the
event, and it authorizes — even encourages — interrogation that would
otherwise be prohibited by the Fifth Amendment. An immunity statute
thus differs from an exclusionary rule of evidence in at least two critical
respects.
First, because an immunity statute gives constitutional approval
to the resulting interrogation, the government is under an obligation here
to remove the danger of incrimination completely and absolutely, whereas
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especially Kastigar, Pillsbury, and Balsys — cuts strongly against it.
It is certainly not the argument stopper or slam-dunk Thomas makes it
appear.
Justice Thomas’s misuse of the immunity precedent as a
dispositive analogy justifying his conclusion in Martinez illustrates
the limitations of analogy as a tool of constitutional interpretation.
[EXPAND AND GENERALIZE] [Explain how one Court used
negative analogy to support Kastigar and then another CT used
positive analogy to undercut it. Pre-trial juvenile detention to adult
detention - - other analogies] [HASN’T SCALIA ARGUED
AGAINST ANALOGIES? I THINK SO IN HIS BOOK A MATTER
OF INTERPRETATION: PLEASE CHECK, OR I’LL CHECK - - I
HAVE THE BOOK]
As with his textual argument, the immunity argument either
goes too far or doesn’t go far enough. Taken to its logical conclusion,
in the case of the exclusionary rules it may be sufficient to shield the
witness from the fruits of the illegal search or interrogation in a partial and
reasonably adequate manner. For when illegal police conduct has
occurred, the exclusion of evidence does not purport to purge the conduct
of its unconstitutional character. The constitutional violation remains, and
may provide the basis for other relief, such as a civil action for damages,
or a criminal prosecution of the responsible officers. The Constitution
does not authorize police officers to coerce confessions or to invade
privacy without cause, so long as no use is made of the evidence they
obtain. But this Court has held that the Constitution does authorize the
government to compel a witness to give potentially incriminating
testimony, so long as no incriminating use is made of the resulting
evidence. Before the government puts its seal of approval on such an
interrogation, it must provide an absolutely reliable guarantee that it will
not use the testimony in any way at all in aid of prosecution of the witness.
The only way to provide that guarantee is to give the witness immunity
from prosecution for crimes to which his testimony relates.
Second, because an immunity statute operates in advance of the
interrogation, there is room to require a broad grant of transactional
immunity without imperiling large numbers of otherwise valid
convictions. An exclusionary rule comes into play after the interrogation
or search has occurred; and the decision to question or to search is often
made in haste, under pressure, by an officer who is not a lawyer. If an
unconstitutional interrogation or search were held to create transactional
immunity, that might well be regarded as an excessively high price to pay
for the “constable’s blunder.” An immunity statute, on the other hand,
creates a framework in which the prosecuting attorney can make a calm
and reasoned decision whether to compel testimony and suffer the
resulting ban on prosecution, or to forgo the testimony.
Kastigar v. United States, 406 U.S. 441, at 470-71 (citations omitted)
(Marshall dissenting).
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its reasoning overrules more than 100 years of firm precedent
requiring an explicit grant of coterminous immunity before a witness
can be compelled to answer self-incriminating questions. That goes
too far. If its reasoning does not overrule the immunity cases, then it
is difficult to understand why the police should be empowered to
coerce a suspect into making self-incriminating statements without
some prior formal approval akin to immunity. Moreover if exclusion
is not the sole remedy for a violation of the witness’ right to remain
silent in the absence of immunity, why should it be the sole remedy
for a violation of the suspect’s right not to be coerced into
surrendering his right to remain silent? The majority opinions do not
satisfactorily address these issues in their rush to deny coerced
individuals the right to sue for a violation of their constitutional right.
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Chapter 3: The Limits of Historical Inquiry
Many of the foundational cases interpreting the meaning and
scope of the 15 “concise” and generic words of the 5th Amendment’s
that constitute the privilege against self-incrimination purport to rely
on history, since as Justice Felix Frankfurter correctly observed:
“The privilege against self-incrimination is a specific
provision of which it is peculiarly true that ‘a page of history
is worth a volume of logic.’”150
History cannot however, always be found on “pages”- - or even
websites. It is often more complex, multifaceted and inaccessible
than judicial opinions or legal briefs make it appear. Advocates’
history, or as one prominent scholar has called it “law office history,”
often consists of the artful selection of “historical facts from one side
only, ignoring contrary data, in order to support, rationalize, or give
the appearance of respectability to judgments resting on other
grounds.”151 Another misuse of history is citing it when it supports
the desired conclusion but completely ignoring it when it undercuts it.
The majority opinion in the Martinez case never mentions
history. Nor does it seek to unearth the Amendment’s original
understanding, though its author and his colleagues who joined his
opinion are often the first to cite history when it supports their views.
This selective resort to history raises important questions regarding
the appropriate uses of history in constitutional interpretation that I
shall address in the coming pages.
Any honest attempt to reconstruct the relevant history
underlying the privilege against self-incrimination will necessarily be
incomplete, selective, impressionistic and probabilistic. This will be
especially so when the sources consulted are primarily judicial and
secondary. The object of such an inquiry can rarely be the discovery
of a singular truth or even pattern. Historians seek coherent stories,
but history itself generally unfolds in a more disorderly and even
random way. The privilege against self-incrimination and its several
components and variations, developed over a period of time when
recordkeeping was spotty, when practice often differed from theory,
when necessity sometimes trumped articulated norms and when law
enforcement was relatively primitive.
The early history of what came to be the modern right against
self-incrimination also developed against the background of European
150
151
Justice Felix Frankfurter in Ullman v. U.S., 350 U.S. 422, at 438 (1956).
Levy, Political Science Quarterly, at p. 1
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political, religious and ideological conflicts, some of which were less
familiar to the new world. As Leonard Levy summarized the context:
“The American origins derive from the inherited English
common-law system of criminal justice. But the English
origins, so much more complex, spilled over legal boundaries
and reflected the many-sided religious, political, and
constitutional issues that racked England during the sixteenth
and seventeenth centuries: the struggles for supremacy
between Catholicism and Protestantism, between Anglicanism
and Puritanism, Between King and Parliament, between
arbitrary rule and limited or constitutional government,
between the suppression of heresy and sedition and freedom of
conscience and press.”152
As Justice Robert Jackson described the quest to recapture
history in the context of discerning the understanding of the framers:
“Just what our forefathers did envision, or would have envisioned had
they foreseen modern conditions, must be divined from materials
almost as enigmatic as the dreams Joseph was called upon to interpret
for Pharaoh.”153
The object of any historical inquiry must therefore be modest:
to convey a sense of how the relevant issues were understood,
considered, addressed, and rationalized during the period of time in
which the privilege developed and the constitutional provision drafted
and ratified.
It is far easier to identify factors that could not have been, or
in fact were not, part of the calculus in balancing the need for
information and evidence, against the rights of defendants and
witnesses. Identifying historical errors – especially the common error
of judging history through the prism of modernity – is not a difficult
task. Reconstructing the prisms through which the framers and their
contemporaries actually viewed the problems associated with the
privilege is a for more daunting task
The historical questions can be posed in several ways, and the
way the question is posed may affect the outcome of the inquiry. For
example, the question can be put quite specifically in an effort to
152
Levy, p. 42
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), at 634 (Jackson
concurring).
153
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respond to the precise question that as before the court in Martinez: at
the time of the framing was there an independent or primary right,
under the privilege against self-incrimination, not be compelled
(tortured) or coerced by government officials into providing
information that was self-incriminating? Or was the only right a
dependent and secondary one that merely prohibited the government
from using any such compelled or coerced information against the
witness at this criminal trial (if there was a trial)?
That specific question may be difficult to answer, since no one
in the framing generation may actually have posed or considered the
question in this dichotomous fashion. Indeed, I have come across no
explicit recognition of the dichotomy that was central to the issue
posed in Martinez until it was raised by Justice Arthur Goldberg in a
footnote to his 1964 opinion in Murphy v. Waterfront Commission
and left unresolved. Several legal historians with whom I conferred
acknowledged as well that they had seen no explicit reference to this
dichotomy before or at the time of the ratification of the Fifth
Amendment. There are, however, several testing sub-questions that
may help answer the primary question:
• Could a person who was being subjected to coercion bring
an injunctive legal action to prevent or stop the coercion – or was his
only remedy exclusion at a subsequent criminal trial?
• Could such a person bring a lawsuit for damages resulting
from coercive or compelled interrogation – even if the fruits of such
interrogations where never used against him at a criminal trial?
• Were judges or other officials ever disciplined or punished
for improperly compelling witnesses to testify?
• Was the remedy of exclusion mandated for all violations of
the privilege (or privileges), or only for some? If only for some, what
remedies, if any, were available for the others?
• Did the law explicitly authorize the use of coercion or
compulsion under any circumstances? If so, which?
• Were certain methods of interrogation or information
gathering absolutely prohibited, regardless of the use to which it
would eventually be put? If so, how was the prohibition enforced?
• Was there any explicit discussions, in the scholarly or
judicial literature, of the difference between the application of
compulsion (or coercion) and the evidentiary use of the resulting
information or evidence?
• Were there any explicit references at common law to the
gathering of preventive intelligence information, as contrasted with
information to be used to incriminate the suspect at his own trial?
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• Was there any articulation of a right to remain silent at
common-law, and if so, were witnesses ever warned or advised of this
right?
• Were there any analogies to immunity at the relevant times?
If so, was compulsion authorized in cases in which a witness had the
functional equivalent of today’s immunity? Was any kind of
compulsion - - such as torture - - forbidden even in such cases?
• In situations where it was unclear whether a witness would
eventually become a criminal defendant, was he accorded a privilege
not to respond to potentially incriminating questions?
• If a witness in a state proceeding claimed fear of being
prosecuted by a sister state or by the federal government, could he
refuse to answer incriminating questions?
• Were the relevant words of the Fifth Amendment understood
by the framers to prohibit certain methods of interrogation? Or were
they intended only to provide a remedy of exclusion if these methods
were employed? If the former, was there any understanding about the
remedy or remedies available to enforce such a prohibition?
• How was the word “person,” in the Fifth Amendment - - as
distinguished from the word “accused,” in the Sixth Amendment - understood?
• How was the word “compelled” understood? Was it limited
to judicial compulsion, or did it include extra-judicial coercion?
• How were the words “any criminal case” understood? Were
they limited to criminal trials, or did they include the Grand Jury
and/or investigative phases of a case?
• How were the words “witness against himself” understood?
Were they limited to sworn witnesses at the trial itself, of did
they include the introduction hearsay testimony by other
witnesses about statements made before trial by the
defendant?
[ADD SUB QUESTIONS]
Sub-questions of this kind designed to help reconstruct the
framing generation’s understanding (or understandings) of the
privilege (and its variants) fall into several categories. The first asks
what the contemporaneous institutions—especially the courts—
actually did, rather than said. If there were remedies—in addition to
or instead of exclusion—for alleged violations of a right to remain
silent or a right not to be coerced or compelled into making selfincriminating statements, that would be fairly compelling evidence of
an independent, primary right. If there were no such remedies, that
fact alone would not conclusively negate the existence of such a right
because there were many rights in those days without well-developed
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remedies. It was thought by some that rights were self-enforcing,
since they were deemed binding on all public officials, not just the
courts.154 But the absence of any remedy would surely weaken the
claim that there was an independent right.
The question of whether a right was recognized and if so how
it was understood by the framing generation is a daunting one. The
framers clearly intended, or said they intended, to codify and
constitutionalize certain existing common law rights and privileges as
they understood them. Not all the framers were lawyers and certainly
not all the ratifiers were lawyers. Some had a technical, legal
understanding of existing rights, while others had a broader, more
philosophical or political understanding of such rights. To suggest an
analogy to the current situation, if a legislative body were today to
seek to codify “the right to remain silent” or “the presumption of
innocence” or the prohibition against “cruel and unusual
punishments,” there would be different contemporaneous
understandings of these rights. Knowledgeable lawyers, aware of the
recent case law, would understand them narrowly, as trial or postconviction rights. Ordinary citizens, including many legislators,
would probably understand them more broadly, as fundamental
protections against governmental overreaching that transcend the
criminal trial process.
In every era, there will be differences between what is
preached and what is practiced. For example, Jeremy Waldron, in
arguing recently that it is “dispiriting as well as shameful to have to
turn our attention to [the] issue of torture” in the post-9/11 world,
quotes an article in the 1911 edition of the Encyclopedia Britannica
that asserts that the “whole subject [of torture] is now of only
historical interest as far as Europe is concerned.”155 That absurd
position could only be maintained if one looked exclusively at what
Europeans were saying about torture, and not at what they were
doing. Torture by Europeans was being extensively practiced by the
French in North Africa, by the British in India, and by the Belgians in
the Congo. [Alan: You wanted me to fill in more examples of
Europeans using torture. Do these latter two suffice?] It
continued to be used during the First and Second World Wars. It is
probably fair to characterize the twentieth century as the “torture
154
There is some evidence that the witness privilege was thought to be selfenforcing by judges and did not require as exclusionary rule. See Henry Smith.
155
Qtd. in Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the
White House,” 105 Columbia Law Review 1681 (2005), at 1683-1684.
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century” and Europe as its “capital.” But one would not recognize
this reality by reading proclamations, statutes, judicial decisions,
encyclopedias, or law review articles. Perhaps if we talked about
torture more, we would practice it less.
De Rochefaucault understood the disparity between parchment
preaching and down-and-dirty reality nearly a third of a millennia ago
when he quipped, “Hypocrisy is the homage which vice renders to
virtue.” The way of the hypocrite - - proclaiming virtue while quietly
tolerating vice - - has never proved an effective tactic for bringing
practice closer to principle.
R.H. Helmholz is far more perceptive than Jeremy Waldron
when he observes that “[l]egal history is filled with instances where in
hindsight practice in the courts does not seem to measure up to the
ideals professed by thoughtful men and women of the time.”156 And
if one adds to “practice in the courts,” practice in the streets, back
alleys, detention centers, lockups, and military theaters, the disparity
becomes even greater.
It is for this reason, among others, that posing focused
questions about what the courts were doing in fact – a variant on
Holmes’ famous definition of law as “the prophecies of what the
courts will do in fact” – is an important window into the
contemporaneous understanding of the right that was
constitutionalized by the 15 words of the 5th Amendment dealing with
self-incrimination.
If the historical answers to those and other relevant subquestions were to point uniformly and definitively in one direction
(as, for example, the history of trial by jury in criminal cases points
uniformly to twelve men, unanimous juries), and if there is a high
level of confidence in the accuracy of the material, as well as in the
absence of other material that might point in a somewhat different
direction, then it might be possible to conclude that history answers
the specific historical question posed in this case: did the framing
generation understand there to be a right not to be coerced, or only a
right to exclude the fruits of compulsion? But if the answers to the
sub-questions point in differing directions, or if there is no compelling
R.H. Helmholz, “The Privilege and Common Law Criminal Procedure: The
Sixteenth to the Eighteenth Centuries,” in R.H. Helmholz, et al., The Privilege
Against Self-Incrimination: Its Origins and Developments (Chicago: The
University of Chicago Press, 1997), p. 12.
156
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evidence that those in the framing generation ever posed the question
in this dichotomous manner, or if there is evidence that the framers
(or some of them) understood the right as broader than how the courts
applied it, then the historical material may be inferentially relevant
but not definitive. That state of affairs – which is probably more
usual than not – is rife with potential for abusing history, by picking
and choosing only these elements that suggest a particular outcome,
while ignoring elements that may undercut it. Judicially opinions are
filled with examples of such selective misuses of historical material.
The “ransacking” of history – as one expert has put it – is a game
played by ideologues of every stripe. As Maitland quipped more than
a century ago, the “seamless web” of history is torn by telling only a
piece of it.157 The web is torn even more when the piece to be told is
selectively picked by an ideologue with a contemporary agenda.
Another common method of misusing history is to cite it only
when it supports one’s ideology and to ignore it when it undercuts
one’s ideology. This ideologically selective recourse to history has
characterized the opinions of many justices over time, including the
author of the Martinez case and his colleagues who joined his
opinion.158 This is part of a larger problem of judicial interpretation:
every method of interpretation is selectively invoked or ignored as it
serves the interests of ideological result orientation.159
In this analysis of the scope of the privilege I rely on the
primary research of others who are more expert than I am at
accessing, translating, and contextualizing the original sources. My
own expertise lies in my extensive experience as a practicing criminal
lawyer over many decades and my ability to see practical connections
that may be more difficult for the academic historian to find in the
existing historical record, which is necessarily incomplete, especially
as to the dynamics of typical, as distinguished from high-profile,
cases. It may also lie in my experientially induced skepticism about
believing that the preserved written records always mirrored the
practices they were purporting to record and report.
157
Quoted in Levy at p. 42
[CITE EXAMPLES]
159
[CITE EXAMPLES]
158
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The Earliest History of the Right Against Self-Incrimination
Elements of what eventually became the right or privileges
against self-incrimination appear in early religious jurisprudence even
before the emergence of the Anglo-American system of criminal
justice. In the trial of John Lilburn – to which, according to Dean
Erwin Griswold, “we owe the privilege of today”160: -- reliance was
placed on the laws of God and the rules prevailing in ancient Israel.
In the original report of Lilburn’s Trial, it will be remarked
that one of the strongest arguments Lilburn used to justify his
refusal to answer to incriminating questions or to take an oath
to answer truly, was that “such practice would be contrary to
the laws of God, for that law requires no man to accuse
himself.” Lilburn seems to indicate that such was the practice
of the courts in Palestine, “for Christ himself in all his
examinations before the high priest would not accuse himself
but upon their demands returned back, Why ask you me? Go
to them that heard me.” The numerous references in Lilburn’s
Case suggest the possibility that “many of our common law
principles and many of the legal forms and customs which we
find difficult to explain, trace their origin more or less directly
to sources in the Written and Oral Law of the Jewish people,”
and, specifically, that “there is a striking coincidence in the
legal thinking in evidence in both systems.”161
In the Miranda decision, Chief Justice Earl Warren, in
asserting that the “roots” of the privilege “go back into ancient times,”
specifically cited Jewish law, as enunciated by Maimonides: “The
principle that no man is to be declared guilty on his own admission is
a divine decree.”162
The traditional Jewish approach to self-incrimination is,
however, significantly different than the Anglo-American approach.
E. Griswold, “Fifth Amendment,” 40 A.B.A.J. (1955) 502,533, 39 Mass. L.Q.
(1054) 414, cited in Simcha Mandelbaum, “The Privilege Against SelfIncrimination in Anglo-American and Jewish Law,” 5 American Journal of
Comparative Law 115 (winter 1956), at p.116. This conclusion has been challenged
by [FILL IN]
161
Simcha Mandelbaum, “The Privilege Against Self-Incrimination in AngloAmerican and Jewish Law,” 5 American Journal of Comparative Law 115 (winter
1956), at p. 119 (notes omitted).
162
384 U.S. 458, n. 27. See also Norman Lamm, “The 5 th amendment and its
equivalent in the Halakah,” 5 Judaism 53 (winter 1956)
160
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Under Jewish law, confessions are absolutely prohibited, even if they
are completely voluntary. The principle is “a man cannot represent
himself as wicked” (“ein adam messim atsmo rasha.”) This principle
grows out of the very different legal system established by the Bible –
a system that demands two external witnesses and that disqualifies the
defendant himself as well as his close relatives from testifying at all.
“The issue, then, is not compulsion, but the whole idea of legal
confession.”163 It is also possible that the Jewish prohibition against
voluntary self-condemnation may reflect the religious prohibition
against suicide. Maimonides, a twelfth century doctor and codifier,
wrote of those who confess as perhaps being among “those who are in
misery, bitter in soul,, who long for death, thrust their sword into their
bellies or cast themselves down from roofs.”164 The rule against selfincrimination may have been designed, in part, to preclude the legal
system from becoming a vehicle for judicial suicide. (At common
law as well “to furnish testimonial evidence against himself with or
without oath, was likened to drawing one’s blood, running oneself
upon the pikes, or cutting one’s own throat with one's tongue.”165)
Analogies to other legal systems, therefore, are relevant but imperfect.
There are, however, some insights that can be gained by looking at
common concerns. Several relevant cases are recounted in the
Talmud:
“[A] person was charged with setting fire to a neighbor’s
property on Sabbath. Judgment was requested166 for money
damages as well as penalties for the violation of the rules of the
Sabbath.167 The defendant offered his own confession in
evidence. It was decided that the testimony should be admitted
only as it related to the civil suit and not for the purpose of
criminal conviction.168 A similar solution was offered by the
Jewish court in another case where a woman was seeking the
court’s permission to remarry. She contended that her former
husband, who had disappeared from home, was dead. To
establish the husband’s death, she called a witness who testified
that he himself killed the husband. The court granted the
Norman Lamm, “The 5th amendment and its equivalent in the Halakah,” 5
Judaism 53 (winter 1956), p. 10
164
Quoted in Levy at p. 438
165
Levy at p. 330
166
Jewish law permitted civil and criminal actions to be brought together in one
proceeding.
167
Setting a fire on the Shabbath was considered by the Torah as a criminal
violation. Exodus 35 (3).
168
Maimonides, Mishneh Torah, Evidence, Ch. 12 (2) (1168)
163
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requested permission to the woman. The court in its opinion
stated that although the testimony was self-incriminatory in
nature, the court could split the testimony and accept the part
which established the death of the husband. The court added that
such testimony could not be used to convict the witness for
murder.169”170
These cases suggest an early, commonsense variation on what
eventually became “immunity.” The witnesses were permitted to
make self-incriminatory statements for use in civil cases, but the
statements were excluded in the criminal cases. Even here, however,
the analogy to the modern privilege is incomplete, because the
witnesses in these cases were not compelled to make selfincriminating statements; they volunteered to do so. Under Jewish
law the gravamen of the violation was not compulsion; it was
disqualification in the context of criminal cases. Since the confession
was not being used in the criminal case, there was no violation of the
disqualification principle and the gravamen never occurred. It would
beg the question to assume that in the context of the modern privilege,
compulsion is not at last part of the gravamen of the violation.171
Many legal systems developed pragmatic ways to circumvent
or limit constraints on prosecuting the factually guilty. In Jewish law,
for example, not only are two witnesses required but advance warning
must have been given to convict a murderer before he could be
convicted. But if there was only one reliable witness and no advanced
warning, the murderer would not simply be let free, perhaps to kill
again. An informal mechanism of incapacitation was developed by
the Rabbis to mitigate the rigors of the Biblical requirements.172 The
same must have been true for the privilege. When societies
desperately needed information – for example, when the King’s life
was believed to be in danger – they got it, regardless of what the law
permitted or forbade. Sometimes, the law provided explicitly for
exceptional situations, as with the “torture warrant” in ___ century
England or the 1641 statutory directive in Massachusetts to employ
torture to elicit the names of “confederates” from convicted capital
169
T. Yebamot, 25b.
Simcha Mandelbaum, “The Privilege Against Self-Incrimination in AngloAmerican and Jewish Law,” 5 American Journal of Comparative Law 115 (winter
1956), at p. 118-119
171
As we shall see, disqualification of the defendant as a sworn witness was also as
an issue at the time of the framing, but the voluntary, unsworn self-incriminating
statements of a defendant were admissible against him.
172
DESCRIBE, CITE MCNACHEM ELON
170
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offenders, as long as the torture was not “barbarous and inhumane.”
Blackstone justified the use of torture to elicit preventive intelligence
as an act of “state,” rather than “law.”173 Mostly, the law was simply
ignored or circumvented through various means. The way of the
hypocrite—proclaiming virtue while practicing vice—has been a
constant throughout history.
As I have shown elsewhere, most legal systems have had both
formal and informal tracks. With regard to Anglo-American justice:
“[T]wo criminal justice systems have operated side-byside. The more formal system (the one we are most familiar
with) has been characterized by high visibility, by progressive
common law development through appellate decisions, by
frequent legislative revision, and by bookshelves of treatises
and other scholarly descriptions and discussions of its
philosophy, substance, and procedure. Perhaps most
important, it has been characterized by a well-developed
jurisprudence imposing principled limits on its
employment.”174
***
“There has always been, however, a parallel system
that has played a significant role in the Anglo-American legal
process. It was less formal and less visible. That is why we
know so little about it today, though it was probably well
known in its own day. It was characterized by the absence of
published opinions and appellate review. It has always been
less principled or at least less willing to articulate governing
principles. Few Treatises or commentaries have been written
about it. Most important, it has never developed an articulated
jurisprudence that imposes principled limits on its
employment. Its primary function has been to fill the gaps
that inevitably occur in any formal system of criminal
justice.”175
We shall see a similar dichotomy in the history of what
became the modern privilege against self-incrimination. There were
considerable differences between what lawyers, judges, and treatise
writers said about the right to remain silent and how that right, if it
173
CITE
Alan M. Dershowitz, Preemption: A Knife That Cuts Both Ways, (New York:
Norton, 2006), pp. 40-41.
175
Id at pp. 41-42
174
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was indeed a right, operated in practice. That dichotomy continues to
this day.
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The Levy Hypothesis
Professor Leonard W. Levy, whose book on the origins of the
Fifth Amendment won the Pulitzer Prize in History, traces the
American right against self-incrimination back to the struggle for
religious and political freedom by English dissidents. In his view the
right grew out of reaction to the wrongs associated with the
prosecution of such dissidents, most particularly with the oath ex
officio, which was an important tool of the inquisitorial system of
justice (or injustice), It required dissidents to swear to tell the truth
before they were charged with a crime, and it empowered their
inquisitors to plumb the depths of their most secret thoughts. In other
words, after they were compelled to take this open-ended oath, they
could be asked, in effect, to confess all of their secret crimes, sins and
disloyal or heretical thoughts, as if to a priest - - except that these
“priests” could administer earthly punishments, including death.
Levy dates the origin of the English privilege as far back as
the thirteenth century when the oath ex officio, or inquisitorial oath
was given as “A gift of Pope Gregory IX”176:
“The new oath procedure was first used in 1246 when Bishop
Robert Grosseteste conducted “strict Inquisitions” into the sexual
misconduct and general immorality of the people in his diocese of
Lincoln. To discover all who were guilty of any of the seven deadly
sins, the noble and humble alike were put to the oath de veritate
dicenda, “an innovation never used in the Realm before,” and were
questioned about themselves and others “to the enormous defamation
and scandal of many.”177
The oath ex officio continued to be used over the subsequent
centuries not only by ecclesiastical courts, but by secular tribunals,
such as the Star Chamber. It proved to be a powerful, if controversial,
weapon against religious and political dissidents. One important
shield against this weapon was principled silence, as manifested by an
old maxim of the cannon law, nemo tenetur seipsum pordere.
Levy, like Dean Erwin Griswold, points to “Freeborn” John
Lilburne - - a seventeenth century Puritan “leveler” - - as “the most
remarkable person connected with the history of the origins of the
right against self-incrimination” and credits his “sensational trial”
with being “the immediate reason for the abolition of the oath ex
176
177
Levy p. 46
Levy p. 47
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officio.”178 Lilburne was the “catalytic agent in the history of the right
against self-incrimination” and its hero.
Among its other heroes was Lord Edward Coke and even King
Henry III who “issued writs of prohibition against Bishop Grosseteste
of Lincoln in 1246 and 1252 commanding that laymen not be
examined under oath in ecclesiastical courts except in matrimonial
and testamentary causes.”179 Although Levy himself does not believe
that the right against self-incrimination can be traced back to Magna
Carta, which granted rights only to nobles in relation to their king,180
he credits the spirit of The Great Charter with providing a stimulus for
the invocation of the right as part of the guarantee that no man shall
be condemned except by the law of the land. The Court of Star
Chamber - - as the King’s council came to be called because it met in
a room “whose ceiling was ornamented with stars”181 - - employed an
oath similar to the one that was so central to the ecclesiastic courts.
These oaths in essence, required those who came before these courts
to incriminate himself by acknowledging his guilt under oath. The
widespread opposition to this inquisitional process was, at least in part
responsible for a fourteenth century reinterpretation of the thirteenth
century words of the Magna Carta:
“The very remarkable transformation of Magna Carta in the
fourteenth century from a feudal aristocratic document to an
embodiment of common-law liberties can be ascribed only partly to
the opposition to the oath procedure of the Council and the
ecclesiastical courts. Yet it is no exaggeration to conclude that the
opposition to inquisitional procedures, of which the inquisitional oath
was a part, had a great deal to do with the burgeoning idea that Magna
Carta’s famous “law of the land” clause of the twenty-ninth chapter
guaranteed to every subject and indictment by grand jury and trial by
jury in a common-law court by common-law procedure. Two
centuries later men would claim with as little historical justification
‘that by the Stature of Magna…this othe for a man to accuse himself
was and is uterlie inhibited.’”182
178
Levy, p. 271
Levy, p. 217
180
And specifically denied them to Jews [cite]
181
Levy p. 49
182
Levy, p. 51
The broadening of the narrow words and original understanding of the Magna Carta
[originally intended to enhance the feudal power of Lords] illustrates a process
much closer to the “living Constitution” approach to Constitutional interpretation
than to Justice Scalia’s narrow textualims based on the original understanding. The
framers of the U.S. Constitution were certainly familiar with how the Magna Cara
was consistently reinterpreted by subsequent generations:
179
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Levy pointed to numerous dissidents who invoked the Magna
Carta in support of their right against self-incrimination,
“Because the cannon law was against them, suspects had to be
creative and invented the claim that conscience and the Magna
Carta authorized a right against self-incrimination…As for the
Magna Carta, Robert Beale, clerk of the Privy Council and an
aggressive champion of Puritan victims of the High
commission, was the first, in 1589, to conscript the Magna
[837] Carta into service against the oath ex officio and all
inquisitorial proceedings by the High Commission.
Beale invented a significant fiction which in time
reached the stature of an article of constitutional faith that the
Magna Carta outlawed forcing a person to be a witness against
himself. James Morice, another Puritan lawyer, published a
book in 1598 in which he argued at length that the nemo
tenetur maxim derived from the Magna Cart. A third Puritan
lawyer, Nicholas Fuller, who had served in the Commons with
Beale and Morice, elaborately advocated the same thesis.”183
Lord Coke also invoked Magna Carta, associating freedom of
conscience and thought - - and thus the right to refuse to answer
questions about that would criminalize these freedoms - - with chapter
29 of The Great Charter.184
“Slowly a constitutional basis was being forged for the assault of a later era
on the practice of forcing men to incriminate themselves.” (Levy p. 53)
“In Tyndale’s principal book, The Obedience of a Christian Man (1528),
there is a passage on tyrants breaking into the heart and consciences of men
and compelling them to swear. In 1591 a group of imprisoned Puritan
Ministers, protesting against the oath ex officio, cited this passage and
extended it to read that no man should be compelled ‘to sweare to accuse
him selfe.’ The same ministers, like others of their time, relied on similar
statements from Tyndale’s book. Tyndale flatly asserted that a man should
refuse an oath put to him by a judge to answer all that is demanded of him.
He also protested the practice of ‘antichrist’s disciples’ in breaking into
men’s consciences by compelling them to forswear themselves ‘or to
testify against themselves.’ The latter phrase incidentally, has the same
tone as the provisions in early American state bills of rights and in the Fifth
Amendment, enjoining against forcing men to be witnesses against
themselves or to give evidence against themselves. In another passage
Tyndale explained that it was ‘a cruel thing to break up into a man’s heart,
and to compel him to put either soul or body in jeopardy, or to shame
himself.’ This is probably the earliest statement equating selfincrimination with self-infamy.” (Levy pp. 63-64)
183
Levy, Cardoza Law Review, p. 8
184
Levy, p. 246
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The origins of the right against self-incrimination, according
to Levy, cannot be fully comprehended without considering its
religious and political background:
“The claim to the right emerged in inquisitorial examinations,
initially conducted by the Church, then by the State. It
emerged also in the context of the great political struggle for
constitutional limitations on arbitrary prerogative; during the
late sixteenth century and early seventeenth, it was a focal
point in that struggle to establish individual liberties and more
representative government. ...The claim to this right also
emerged in the context of a whole cluster of criminal
procedures whose object was to ensure fair play to the
criminally accused. It harmonized with the principles that the
accused was innocent until proved guilty and that the burden
of proof was on the prosecution. It was related to the idea that
a man’s home should not be promiscuously broken into and
rifled for evidence of his reading and writing. It was
intimately connected to the belief that torture or any cruelty in
forcing a man to expose his guilt was unfair and illegal. It was
indirectly associated with the right to counsel and to have
witnesses on behalf of the defendant, so that his lips could be
sealed against the government’s questions or accusations.
…Above all, the right was most closely linked to freedom of
religion and speech. It was, in its origins, unquestionably the
invention of those who were guilty of religious crimes, like
heresy, schism, nonconformity, and, later, of political crimes
like treason, seditious libel, and breach of parliamentary
privilege - - more often than not, the offense was merely
criticism of the government, its policies, or its officers. The
right was associated then with guilt for crimes of conscience,
of belief, and of association. In the broadest sense it was a
protection not of the guilty, or of the innocent, but of freedom
of expression, of political liberty, of the right to worship as
one pleased. In sum, its subtle and slow emergence in English
law was, in the words of Dean Erwin N. Griswold, ‘one of the
great landmarks of man’s struggle to make himself civilized,’
‘an expression of the moral striving of the community,’ and
‘an ever-present reminder of our belief in the importance of
the individual.’ The symbolic importance and practical
function of the right was certainly a settled matter, taken for
granted, in the eighteenth century. And before that it was part
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of the heritage of liberty which the common law bequeathed to
the English settlers in America. ”185
In light of this rendition of history, it is not surprising that
Levy concludes that although the right against self-incrimination “was
but shakily or unevenly established in America by the close of the
seventeenth century,”186 it was well established by the time the Bill of
Rights was ratified at the close of the eighteenth century. He quotes a
1735 pamphlet by Benjamin Franklin that supported a minister’s right
to refuse to submit his dissident sermons to a commission of inquiry,
arguing that such compulsion “is contrary to the common rights of
mankind, no man being obliged to furnish matter of accusation
against himself.”187 He also cites several cases from colonial New
York, Pennsylvania, Massachusetts and other colonies to the effect
that, “the right against self-incrimination was…firmly fixed…”188 By
1776, “several states elevated the common-law right against selfincrimination to the status of a constitutional right.”189 Thus, when
the privilege was included in the Fifth Amendment in 1793, it was
uncontroversial. According to Levy, it was, at the very least, “a ban
on torture and a security for the criminally accused,”190 but “these
were not the whole of its functions:”
“The framers understood that without fair and regularized
procedures to protect the criminally accused, there could be no
liberty. They knew that from time immemorial, the tyrant’s
first step was to use the criminal law to crush his opposition.
Vicious and ad hoc procedures had always been used to
victimize nonconformists and minorities of differing religions,
radical or political persuasion. The Fifth Amendment was part
and parcel of the procedures that were so crucial, in the minds
of the framers to the survival of the most treasured rights.
One’s home could not be his “castle,” his property be his own,
his right to express his opinions or to worship his God be
secure, if he could be searched, arrested, tried, or imprisoned
in some arbitrary or ignoble manner.
….The framers of the Bill of Rights saw their injunction, that
no man should be a witness against himself in a criminal case,
as a central feature of the accusatory system of criminal
justice. While deeply committed to perpetuating a system that
185
Levy, pp. 331-332
Levy, p. 368
187
Levy, p. 383
188
Levy, p. 385
189
Levy, p. 405
190
Levy, p. 430
186
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minimized the possibilities of convicting the innocent, they
were not less concerned about the humanity that the
fundamental law should show even to the offender. Above all,
the Fifth Amendment reflected their judgment that in a free
society, based on respect for the individual, the determination
of guilt or innocence by just procedures, in which the accused
made no unwilling contribution to his conviction, was more
important than punishing the guilty.”191
Further, the fifteen relevant words of the Fifth Amendment
constituted “the statement of a bare principle…in order to allow for its
expansion as the need might arise.”192
This broad view of the political and religious history of the
right against self-incrimination and of its established status by 1793
has been vigorously disputed by some legal historians, prominent
among them Professor John Langbein of Yale Law School (and for
purposes of full disclosure a former criminal law student of mine).
191
192
Levy, pp. 430-431
Levy p. 430
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The Langbein Hypothesis
John H. Langbein, whose groundbreaking research has
revolutionized our understanding of the development of the adversary
system of criminal justice, argues that the origins of the contemporary
privilege against self-incrimination lie not so much in the dissent
battles over the oath ex officio, as in the increasing role of defense
counsel following the ratification of the Bill of Rights. He sees the
privilege, therefore, much more in the context of the criminal justice
system than in the broader context of political and religious dissent.
His primary argument is that prior to the eighteenth century, there
could be no effective privilege since the defendant was, as a practical
matter, required to speak for himself at trial. This was the case
because an attorney could not speak for him. Unless the defendant
personally “respond[ed] to the charges against him,”193 he would
effectively be presumed guilty and convicted, since he also “lacked
the protection of the modern judicial instruction on the standard of
proof....194” Thus, as Langbein picturesquely summarizes the
situation: “The right to remain silent when no one else can speak for
you is simply the right to slit your throat, and it is hardly a mystery
that defendants did not hasten to avail themselves of such a
privilege.”195
Langbein researched the “pamphlet reports of trials from the
1670s through the mid-1730s”—and then “into the 1780s”—and
found no case in “which an accused refused to speak on asserted
grounds of privilege, or in which he makes the least allusion to a
privilege against self-incrimination.” He concluded therefore that
criminal defendants could not, as a practical matter, assert any
privilege against self-incrimination. “In a word, they sang.”196
John H. Langbein, “The Privilege and Common Law Criminal Procedure: The
Sixteenth to the Eighteenth Centuries,” in R.H. Helmholz, et al., The Privilege
Against Self-Incrimination: Its Origins and Developments (Chicago: The
University of Chicago Press, 1997), p. 84.
194
John H. Langbein, “The Privilege and Common Law Criminal Procedure: The
Sixteenth to the Eighteenth Centuries,” in R.H. Helmholz, et al., The Privilege
Against Self-Incrimination: Its Origins and Developments (Chicago: The
University of Chicago Press, 1997), pp. 89-90.
195
John H. Langbein, “The Privilege and Common Law Criminal Procedure: The
Sixteenth to the Eighteenth Centuries,” in R.H. Helmholz, et al., The Privilege
Against Self-Incrimination: Its Origins and Developments (Chicago: The
University of Chicago Press, 1997), p. 87.
196
John H. Langbein, “The Privilege and Common Law Criminal Procedure: The
Sixteenth to the Eighteenth Centuries,” in R.H. Helmholz, et al., The Privilege
193
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This all changed, according to Langbein, as criminal defense
lawyers became more actively involved in the defense of persons
accused of crime. The system transformed itself from the “accused
speaks” model – which had little room for a privilege – to the “testing
the prosecution model,” in which lawyers did the talking and
eventually “suppressed the defendant’s testimonial role.” It was
under this latter model that the modern privilege against selfincrimination developed in practice.
Langbein acknowledges that the theoretical basis for a
privilege ante-dated the emergence of defense counsel and the modern
adversary system. The maxim Nemo Tenetur Prodere Seipsum (no
one is obliged to accuse himself) has roots deep in Christian as well as
Jewish law. A Christian was obliged to confess his sins to God (or his
priestly surrogate) but not to admit his crimes to secular authorities.
But Langbein’s “key insight” is that
“the maxim did not make the privilege. It was rather
the privilege – which developed much later – that absorbed
and perpetuated the maxim. The ancestry of the privilege has
been mistakenly projected backwards on the maxim, whereas
the privilege against self-incrimination in common law
criminal procedure was, in truth, the achievement of defense
counsel in the late eighteenth and early nineteenth
centuries.”197
Langbein relates the theoretical privilege to its practical utility
in a nuanced summary:
Against Self-Incrimination: Its Origins and Developments (Chicago: The
University of Chicago Press, 1997), p. 95.
197
John H. Langbein, “The Privilege and Common Law Procedure: The Sixteenth
to the Eighteenth Century” in R. H. Helmholz, Charles M. Gray, John H. Langbein,
Eben Moglen, Henry E. Smith, Albert W. Alschuler (eds.), “The Privilege Against
Self-Incrimination: Its Origins and Development,” (Chicago & London: The
University of Chicago Press, 1997), p. 107. “Without defense counsel, a criminal
defendant’s right to remain silent was the right to forfeit any defense; indeed, in a
system that emphasized capital punishment, the right to remain silent was
tantamount to the right to commit suicide. Only when defense counsel succeeded
in restructuring the criminal trial to make it possible to silence the accused did it
finally become possible to fashion an effective privilege against self-incrimination
at common law.” John H. Langbein, “The Privilege and Common Law Procedure:
The Sixteenth to the Eighteenth Century” in R. H. Helmholz, Charles M. Gray,
John H. Langbein, Eben Moglen, Henry E. Smith, Albert W. Alschuler (eds.), “The
Privilege Against Self-Incrimination: Its Origins and Development,” (Chicago &
London: The University of Chicago Press, 1997), p. 107
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“The better way to encapsulate the theme…is not to
say that there was no privilege but rather to recognize that the
structure of criminal procedure in the early modern epoch
made it impossible to implement the privilege. The “accused
speaks” criminal trial stood in perpetual tension with the
notion of a right to remain silent. The privilege against selfincrimination became functional only as a consequence of the
revolutionary reconstruction of the criminal trial worked by
the advent of defense counsel and adversary criminal
procedure. The privilege as we understand it is an artifact of
the adversary system of criminal procedure. The error has
been to expect to find the privilege in operation before the
adversary system was in place.”198
Ships Passing in the Night
There are several missing pieces in Langbein’s innovative
analysis. In the first place, he deals with only one aspect of the
privilege, namely the right of an already-charged criminal defendant
to refuse to speak (Langbein sometimes says “testify” - - but a
defendant was not generally allowed to “testify” under oath at his own
criminal trial.) The so called “defendants privilege” is an important
privilege, but it is not the only one.
In reality there are three relatively distinct privileges against
self-incrimination: the first is the one on which Langbein focuses, the
criminal defendant’s privilege. As understood today, it has several
components: it precludes the government (the prosecution or the
court) from calling the defendant as a witness at his criminal trial.
The defendant does not even have to invoke this right. It is a
limitation on the government, pure and simple. If a prosecutor were
to say, in front of a jury, “I now call my next witness, the defendant,”
the right would be violated without more, and a mistrial would almost
certainly be declared. Closely related to this limitation on the
government is the right of the criminal defendant to decide whether or
not to testify on his own behalf, and if he decides not to testify, to
have no adverse influence drawn from the exercise of this right.199 If
John H. Langbein, “The Privilege and Common Law Procedure: The Sixteenth
to the Eighteenth Century” in R. H. Helmholz, Charles M. Gray, John H. Langbein,
Eben Moglen, Henry E. Smith, Albert W. Alschuler (eds.), “The Privilege Against
Self-Incrimination: Its Origins and Development,” (Chicago & London: The
University of Chicago Press, 1997), p. 108
199
Defendant is entitled to an instruction to that effect if he requests one.
198
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he decides to testify on his own behalf, he now has that right under
the current interpretation of the Sixth Amendment, although he did
not have it at the time of the framing. Related to this is the right of a
defendant to a jury instruction squarely placing the burden of proof on
the prosecution, because if the burden were to be on the defendant,
that would undercut his right not to testify. Finally, there is the right
to counsel, also under the Sixth Amendment, because in the absence
of that important right, there would be no one other than the defendant
himself to present the defense case.
This broad defendant’s right is not limited to selfincrimination or being a witness against himself. It is an absolute
right not to be called or required to testify at all, even if his testimony
would be completely self-exonerating or in his favor. A criminal
defendant need not assert, suggest or even believe that his testimony
could be self-incriminating as a condition to exercising his right not to
testify. He can simply decide, as a tactical matter, that it is in his best
interest not to testify. To test this proposition, let us assume that a
defendant confides in his lawyer that the only reason he does not want
to testify at his trial is that he is afraid his testimony will hurt his
friend, or will reveal an embarrassing but not criminal act (say
adultery in a state where that is not criminal). It would be entirely
appropriate for a criminal defendant to decide not to testify under
these circumstances, and it would be entirely ethical for a lawyer to
go along with that decision (so long as it did not compromise his
ability to effectively represent his client – a somewhat more complex
issue.200) As we shall soon see, this would not be the case with the
witness’ privilege: a witness can only refuse to answer specific
questions that could tend to incriminate him. If a lawyer asserted the
witness privilege to protect a third person or to protect the witness
from mere embarrassment, he would be acting unethically.
Another example that demonstrates that the defendant’s
decision not to testify need not be based on the self-incriminatory
substance of his testimony is provided by the defendant who would
simply make a poor impression because of his evasiveness, arrogance
or other personal characteristics. The lawyer for such a defendant
might well decide that it was too risky to put him on the stand, even if
the substance of his testimony would be exculpatory. A mere witness
could not claim the privilege on this ground.
200
Florida v. Nixon (03-931) 543 U.S. 175 (2004) [What else do you need added?
Would you like to quote from this piece?]
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Getting back to Langbein and the defendants’ privilege, he is
surely right that a self-interested defendant would be unlikely to
decline to speak at all if his voice was the only one that could be
heard in his defense. But to waive one’s right to silence may not
always be the same as waiving one’s right against self-incrimination.
A defendant could, at least in theory, speak exculpatory – that is
assert his innocence and tell an exculpatory story, such as an alibi.
Experienced criminal lawyers know of course that what sounds
exculpatory to a lay client will often sound inculpatory – that is selfincriminating – to a judge or jury. This would be especially true if the
defendant, after telling his exculpatory story, could be questioned
about it by the judge or prosecutor. Langbein, in a conversation with
me, said that he was not certain how much if any questioning of the
unsworn accused took place during the “accused speaks” era, but it is
logical to assume that some questioning must have been allowed
[CHECK THIS] and that the truthful answers to at least some of the
questions would be self-incriminating. It would be interesting to see
whether any defendants who chose to speak on their own behalf and
told an exculpatory story, then tried to assert the privilege in response
to incriminating questions; and if so, whether judges allowed selective
invocation of silence after the accused had spoken.201
Levy does not fully address this issue in his book, but in a
subsequent law review article, responding to Langbein and other
critics, he makes a related point:
“The fact that defendants spoke does not mean that defendants
were forced to confess guilt at their trials. Defendants spoke
to deny the charges against them and to repudiate the
prosecution’s evidence. They invoked the right only when
necessary to respond to a question the answer to which might
incriminate. … Langbein cannot distinguish between a
defendant’s answering a question by denying the charges and
a defendant’s refusal to answer on grounds of selfincrimination. Langbein says that defendants claimed the
right in isolated remarks, while ‘utterly disregarding any
supposed privilege against self-incrimination.’ Supposed? Is
Langbein implying that the ‘privilege’ was just a fiction?
Indeed, Langbein’s point misleads, for the defendant spoke to
answer charges, invoking his right only when an answer might
incriminate him.”202
201
202
prophylactic rule
Levy, [Cardoza Law Review??]
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Moreover, Langbein neglects one of the earliest
manifestations of the privilege that is central to Levy’s hypothesis: the
right of a person not to reveal crimes of which the authorities had no
knowledge. One of the great evils of the oath ex officio was that it
required the person to take “an oath to tell the truth before knowing
the charges and accusers.”203 Religious and political dissenters (and
in an age when religion and politics were barely distinguishable,
dissenters tended to be both) were summoned before eccliastical
tribunals and required to take this oath. If they took it they — as
believing Christians — would be religiously and morally obliged to
tell the truth. “In the seventeenth century men did not take oaths
lightly.” Once the person was under oath, the tribunal would probe
them about their opinions, ideas, beliefs, heresies and loyalties. In
that way, they would “ensnare” dissidents into becoming selfconfessed criminals.
In 1607 the Privy Council, on a motion by the House of
Commons, sought an advisory opinion from Chief Justices Edward
Coke and John Poplam, about whether an ecclesiastical judge could
employ the oath ex officio. This was their opinion:
“1. That the Ordinary [another name for an ecclesiastical
judge – (CHECK THIS)]cannot constrain any man,
ecclesiastical or temporal, to swear generally to answer to
such interrogatories as shall be administered unto him; but
ought to deliver unto him the articles upon which he is to be
examined, to the intent that he may know whether he ought by
the law to answer to them: and so is the course of the StarChamber and Chancery; the defendant that the copy of the bill
delivered unto him, or otherwise he need not to answer to it.
2. No man ecclesiastical or temporal shall be examined upon
secret thoughts of his heart, or of his secret opinion: but
something ought to be objected against him what he hath
spoken or done. No lay-man may be examined ex officio,
except in two causes, and that was grounded upon great
reason: for lay-men for the most part are not lettered,
wherefore they may easily be inveigled and entrapped, and
principally in heresy and errors of faith: and this appears by an
ordinance made in the time of Edward I. Tit. Prohibition in
Rastal.”204
203
Levy p. 284
???? P. 231
204
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Thus, an early version of the privilege was that “no man had to
reveal an unknown crime, but if strongly suspected he was obliged to
answer truthfully under oath.”205 The latter part of this formulation
soon disappeared, but the earlier has, of course, remained an essential
part of the constitutional right.206
Langbein ignores the reality that this aspect of the privilege - not to be compelled to reveal an unknown crime - - could operate to
the advantage of a suspected dissident even without his having access
to counsel. The “accused speaks” system operated only after the
accused was, in fact accused - - of a specific crime. At that point,
absent counsel, he had every incentive to speak, and whatever
privilege he may have had in theory did him little good in practice.
But a dissident, who was merely suspected - - without external proof - of holding heretical or treasonous views, had an incentive to remain
silent, and many did, even without advise of counsel.207
This right not to reveal unknown or merely suspected crimes
became important during the McCarthy era when people suspected of
communist affiliations were compelled to take loyalty oaths or to
testify about their beliefs and affiliations. It has also been important
in the context of police “roundups” of suspected criminals, which still
occur from time to time. It is certainly among the root sources of the
current privilege and dates this aspect of it well before the late
eighteenth century, when defense lawyers began to play a more active
role in the trials of defendants who would pay for them.
In some respects Levy and Langbein are ships passing in the
night. Each is dealing primarily with different aspects of the privilege
and different historical sources of what eventually became the
multifaceted constitutional right against self-incrimination. Levy, the
historian, focuses on the larger political and religious roots of the
privilege and on its “symbolic importance.” Langbein, the lawyer
(and legal scholar) emphasizes it practical applications and its role as
part of the adversarial process in action.
The second privilege against self-incrimination - the witness
privilege was not the focus of either Levy’s or Langbein’s hypotheses,
but it has played a central role in the American history of the
privilege. The witness’ privilege does not provide an absolute right to
remain silent. If a witness in a case in which he is not the criminal
defendant – say a civil case, a legislative hearing or someone else’s
criminal case – is subpoenaed, he must take the stand208. He cannot
205
Levy, Cardoza Law Review, p. 2
With some exceptions, see Byers, Jenkins
207
See Levy Cardoza p. 12
208
In some situations, a judge will permit a witness not to take the stand if the
judge knows that the witness will properly invoke the privilege as to all questions.
206
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refuse to answer questions that might incriminate others or that would
merely embarrass him. Nor can he claim nervousness or other
personal characteristics. In order to invoke the witness privilege, as
distinguished from the criminal defendant’s privilege, he must have a
good faith basis for believing that the answer to a specific question or
series of questions might incriminate him. He has no blanket
privilege not to testify, as the criminal defendant does, but only a
privilege not to incriminate himself. This privilege can be neutralized
by derivative use immunity. The defendants’ privilege cannot. (A
criminal defendant cannot be given derivative use immunity, called as
a witness in front of the petit jury and then have the jury instructed to
disregard his testimony and its fruits; he could, at least in theory, be
called before the grand jury, given immunity, and be compelled to
answer questions whose answers and their fruits would be kept from
the petit jury. But indictment is almost certainly part of “any criminal
case”, and so he would have been improperly compelled to be a
witness against himself before the grand jury.209
The witnesses’ privilege has assumed a political role, since it
is often invoked in legislative hearings such as those conducted
during the McCarthy era. But it also plays an important role in the
legal system, because witnesses frequently invoke it in civil cases and
when subpoenaed by the prosecution and/or defense in the criminal
trials of others.
The third privilege, which grows out of the oath ex officio as
described by Levy, is the suspect’s privilege - - something called “the
confession rule” - - and it focuses on an entirely different manner of
compulsion, from the defendant’s and witnesses’ privileges. The
suspect is being interrogated by the police, who generally have no
subpoena or legal authority to require him to answer any questions.210
He can simply refuse, not because of any constitutional privilege he
has, but because of the lack of power the police generally have to
compel him to answer. The power of the police comes not from the
[See Furman] This is highly questionable in light of the general rule that a fact
finder can draw negative inferences from a witness’ invocation of the privilege, but
not from the defendant’s in a criminal case.
209
To complicate matters even further, what if a criminal defendant were granted
derivative use immunity and compelled to answer incriminating questions before
one grand jury (call it the investigative grand jury) and then be indicted by another
grand jury (call it the indicting grand jury). Would that violate the privilege under
Justice Thomas’ approach? It’s unclear.
FN ON RIGHT IN FROM OF GRAND JURY. GOV’T CAN’T CALL A
“TARGET.”
210
FN ON HUBBEL, ANDRESON, BYERS
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authority of the subpoena or judicial compulsion211, but rather from
the psychological advantage they have in an encounter of this sort.
The courts, therefore, have articulated a suspect’s privilege that
purports to regulate the use of police compulsion – usually called
“coercion” – in the context of in-custody interrogation. In the Brown
case, (discussed supra at pages ___), the court said that “compulsion
by torture to extort a confession” before trial is “a different matter”
from the defendants’ or witnesses’ privilege, and is not governed by
any privilege against self-incrimination, but subsequent decisions
have regarded the suspects’ privilege as part of the constitutional
jurisprudence of the right against self-incrimination.
Conceptually, the suspects' privilege is in some respects “a
different matter” from the defendants' and witness’ privileges and in
other respects it is quite similar. It is different in that the defendants
and the witness are being compelled by judges to testify under oath,
while the suspect is being coerced by policemen to provide unsworn
evidence that will be used against him at trial. They are similar in that
the suspect is functionally in the same position as the person who was
questioned under the oath ex offiico regime: both were suspected;
neither was yet charged; and the questioners were seeking to obtain
information they did not have or could not prove. It is correct
therefore, certainly as a matter of history, to consider the suspects’
privilege in tandem with the other privileges as part of the overall
right against self-incrimination.
These three privileges, which have now coalesced into the modern
5th Amendment privilege against self-incrimination, originated from
three distinct, but overlapping, common law rules with somewhat
different histories and policies.212 Langbein is surely correct that it
was not until sometime after the ratification of the 5th Amendment,
when defense lawyers began to play a more active role in criminal
trials and the police emerged as an important investigative institution,
that the modern privilege became recognizable in its current
manifestations. But Levy is correct in dating the roots of the privilege
much further back in time. Moreover, as the wrongs change the rights
change along with it. The early history of the privilege was
211
Some statutes now require a suspect to respond to certain limited police
inquiries. See Hibel, Beyers.
212
Henry E. Smith: “The Modern Privilege: Its Nineteenth-Century Origins,” in:
John H. Langbein, “The Privilege and Common Law Procedure: The Sixteenth to
the Eighteenth Century” in R. H. Helmholz, Charles M. Gray, John H. Langbein,
Eben Moglen, Henry E. Smith, Albert W. Alschuler (eds.), “The Privilege Against
Self-Incrimination: Its Origins and Development,” (Chicago & London: The
University of Chicago Press, 1997), chap. 6.
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inexorably intermeshed with political and religious persecutions in
which men’s thoughts and ideas were on trial. These wrongs, with
some striking exceptions, were not carried to the new world. The
right against self-incrimination in the new world became more of a
legal than a political right, invoked more often by common criminals
than by heroic dissidents. During periods in our own history when
thoughts and loyalties were again placed on trial, the right took on a
more political coloration.213 All this makes it quite difficult to discern
the understanding the framers had when they drafted and ratified the
relevant words of the Fifth Amendment, and to decide how their
understanding (or understandings) can be translated and made
applicable to the very different system of criminal justice that
operates today. Albert Alschuler has well summarized the situation:
“In a very different world from that of the early American Republic,
restoring the original understanding of the Fifth Amendment privilege
is impossible.”214 It may be possible however to shed some historical
light some of the narrower questions set out earlier on pages _____________ including the following: Whatever the content or contents
of the various rules that were reflected in the 15 words of the 5th
amendment, were they enforced only through evidentiary
exclusionary rules at trial, or did they contain stand alone rights or
limitations on governmental action, enforceable directly against those
who violated the rules by employing improper compulsion or
coercion?
There is some very early historical evidence to suggest the
latter.
“Before the consistory court of the Diocese of Ely in
1375. disciplinary action was initiated against the archdeacon
of Ely for having violated the prohibition. He was said to
have habitually interrogated men and women under oath in
circumstances where their “pretended excesses were wholly
secret.” A similar charge was brought against an official in
the Diocese of Carlisle early in the next century…. That the
canonical form of the privilege also made itself known outside
the world of ecclesiastical lawyers during the Middle Ages is
213
FN ABOUT ALIEN & SEDITON ACT
Albert W. Alschuler: “A Peculiar Privilege in Historical Perspective,” in: John
H. Langbein, “The Privilege and Common Law Procedure: The Sixteenth to the
Eighteenth Century” in R. H. Helmholz, Charles M. Gray, John H. Langbein, Eben
Moglen, Henry E. Smith, Albert W. Alschuler (eds.), “The Privilege Against SelfIncrimination: Its Origins and Development,” (Chicago & London: The University
of Chicago Press, 1997), p. 202
214
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suggested by a long-remembered incident involving Robert
Grosseteste, bishop of Lincoln between 1235 and 1253.
Grosseteste was a famous and earnest bishop, but as Sir
Richard Southern has shown, the rigorous but unconventional
approach characteristic of Grosseteste’s thought put him
slightly outside the mainstream. Exactly that approach is seen
his attempts to root out abuses and immoral conduct in his
diocese. He went too far. He imposed oaths on the laity,
requiring them to reveal their secret faults. In this, it was
widely alleged, the bishop’s practice stood contrary to the law.
Grosseteste was confusing the public courts of the church with
the confessional, precisely in the way the ius commune
forbade. Objections from the laity, objections that ultimately
took the form of royal prohibitions, ended this experiment in
pastoral control.”215
But as Charles M. Gray has pointed out, these cases involving
writs of prohibition most often involved interjurisdictional disputes
between religious and secular courts, and the writs were designed to
preserve the prerogatives of the secular courts. In other words, they
were at least as much about power as they were about rights. But still
they suggest there was more to the privilege and its antecedents than a
mere exclusionary right. The focus was not only on subsequent use of
the evidence but also on the means used to compel or coerce the selfincriminating statements. This was certainly the case when it came to
torture, which was seen as a stand-alone evil, and which, according to
Levy, came to an end in 1640.216 It was probably also true of
interrogation under oath, which, at least for some, was seen as
analogous to torture:
R. H. Helmholz, “The Privilege and Ius Commune: The Middle Ages to the
Seventeenth Century,” in: R. H. Helmholz, Charles M. Gray, John H. Langbein,
Eben Moglen, Henry E. Smith, Albert W. Alschuler (eds.), “The Privilege Against
Self-Incrimination: Its Origins and Development,” (Chicago & London: The
University of Chicago Press, 1997), p. 32-33
216
It is interesting to note that although the use of torture to obtain confessions or
information “died out [in England] after 1640,” it continued to be used as an
acceptable form of punishment following conviction:
“Similarly, ‘cruel and unusual punishment,’ in the words of the Bill of Rights of
1689, were not torture either. The barbaric butchery, for example, that followed
conviction for treason was regarded as a penalty inflicted on one who had been tried
and found guilty by the ordinary processes of the law. Aggravated forms of the
death penalty for murder, as well as treason, persisted long after the Bill of Rights,
but in the eighteenth century gibbeting, mutilation, dissection, and the like were
performed only after the doomed victim was hanged until dead. In any case, his
punishment was in no legal sense regarded as a form of torture and had nothing to
do with self-incrimination.” (Levy, p. 326)
215
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“The claim that incrimination interrogation under oath is
forbidden for the same reason that torture is forbidden was
asserted by religious dissenters in England and embraced by
religious dissenters in America. In about 1591, Thomas
Cartwright and eight Puritan colleagues objected that the ex
officio oath “put the conscience upon the racke.” In 1637,
John Lilburne declared before the Start Chamber that “no
man’s conscience ought to be racked by oaths imposed.”’217
The American historical evidence is consistent with the
British. There was a close association between the principles
underlying the privilege, as it came to be incorporated into the 5th
amendment, and the fear of torture and other impermissible methods
of interrogation:
“[I]n legislative and convention proceedings, in letters,
newspapers, and tracts, in judicial opinions and law books, the
whole period from 1776 to 1791 reveals neither sufficient
explanation of the scope of such a clause or the reasons for it.
That it was a ban on torture and a security for the criminally
accused were the most important of its functions, as had been
the case historically…”218
In State v. Hobbs,219 an 1803 Vermont case, the Supreme
Court of Vermont seemed to conclude that the state constitution’s
self-incrimination clause was understood to prohibit the use of torture
as a means of extracting evidence, regardless of whether its fruits
were subsequently admitted into a judicial proceeding. Vermont’s
clause read: “That in all prosecutions for criminal offenses…nor can
he be compelled to give evidence against himself.” The court held:
In this concise and luminous display of the rights of the
citizens of this State, especially in the penultimate clause, all
compulsory process to enforce an acknowledgment of guilty is
for ever excluded, not only from our judicial proceedings, but
Albert W. Alschuler: “A Peculiar Privilege in Historical Perspective,” in: John
H. Langbein, “The Privilege and Common Law Procedure: The Sixteenth to the
Eighteenth Century” in R. H. Helmholz, Charles M. Gray, John H. Langbein, Eben
Moglen, Henry E. Smith, Albert W. Alschuler (eds.), “The Privilege Against SelfIncrimination: Its Origins and Development,” (Chicago & London: The University
of Chicago Press, 1997), p. 191 (notes omitted)
218
Alschuler, citing Levy at 430
219
2 Tyl. 380
217
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all attempts of individuals to extort confessions by bodily
suffering is reprobated.220 (emphasis added)
The case raised the issue of whether the defendant could be criminally
punished for torturing the accused, who was suspected of theft: “The
Court, in delivering sentence, observed, that there was no statute
against the crime, as the Legislature never could have contemplated
its commission in an enlightened age, and amongst a free people.” Id.
Nonetheless, the Court ruled that “the indictment is founded on the
common law, and must be followed by the common law punishment.”
Had a statute prohibiting the conduct exited, “it would probably have
been in the power of the court to award a punishment more adequate
to the enormity of the offense.”221 In short, torture to extract evidence
was itself a violation of the common law for which the torturer could
be punished. The point of impact of the violation was when the
torture was employed against the suspect, not when its fruits were
admitted against him.
The court explained its view of the history of the privilege:
However the practice of torture to extort confession had
prevailed in various governments, it certainly never was
sanctioned by the common or statute law of our English
ancestors for although the rack was occasionally resorted to in
the reign of Henry VI and even in the reign of Queen
Elizabeth, yet Judge Blackstone observes, it was used as an
engine of state, not of law; and upon the assassination of the
Duke of Buckingham by Felton in the reign of Charles I, it
was proposed in the privy council to put the assassin to the
rack, in order to discover his accomplices; but the Judges
being consulted declared unanimously, to their own honour
and the honour of the English law, that no such proceeding
was allowable by the laws of England,. But in all ages and
countries where the inhuman and unreasonable process has
been in use, men of enlightened minds, so far as they have had
occasion to mention it, have borne testimony against it;
principally however, on account of its uncertainty as a
criterion of truth.222
220
Id. (the case lacks page numbers for citation).
Id.
222
Id. (emphasis in original).
221
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This case presents a close analogue to Chavez. The common
law understanding of the privilege, which was arguably
constitutionalized in the Bill of Rights, was sufficient to punish the
interrogator for torture. The court found that the use of torture to
extract confessions was “against law, the constitution, and the peace
and dignity of the state of Vermont.”223 It is unclear whether the
person tortured in that case was ever prosecuted, whether he
confessed, or whether any confession was excluded, but it clear that
Vermont’s self-incrimination provision was violated by “all attempts
of individuals to extort confession by bodily suffering.” Though the
court said that an important part of the privilege’s justification was the
unreliability of a torturously extracted confession, the privilege was
cast as a primary right to be free from such coercion, not exclusively
as a trial right. Its point of impact was the moment of coercion. It
would have been interesting to see what a court would have done if
torture had produced self-proving evidence - - say an admission of a
fact that only the criminal could know. If there were no concern
about “its uncertainty as a criterion of truth”, would the torturer have
been commended for the truth he elicited or still condemned for the
means he employed to produce that truth? Such are the vagaries of
history that we can only speculate on the answer to this unasked
question.
Professor Levy may well be correct when he observes that
“where there is a right against self-incrimination there is necessarily a
right against torture,”224 but the courts and commentators have often
less than clear about whether the “right against torture” stands alone
and gives rise to an independent cause of action, regardless of any
subsequent evidentiary use.
The right not to be tortured was certainly on the mind of
American Revolutionaries at the time the Bill of Rights was being
considered. Torture was not a distant danger associated by the
colonist with the old regimes of Europe, as Patrick Henry apparently
believed when he warned of the potential power of Congress to:
“Introduce the practice of the civil law, in preference to that of
the common law. They may introduce the practice of France,
Spain, and Germany – of torturing, to extort a confession of
the crime…. [T]hey will tell you that there is such a necessity
of strengthening the arm of government, that they must have a
223
224
Id.
Levy, p. 326
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criminal equity, and extort confession by torture, in order to
punish with still more relentless severity.”225
Torture had, in fact, been authorized, in special cases, by article 45 of
the 1641 Massachusetts Body of Liberties:
No man shall be forced by Torture to confess any Crime
against himself nor any other unless it be in some Capital case
whether he is first fully convicted by clear and sufficient
evidence to be guilty, After which if the cause be of that
nature, That it is very apparent there by other conspirators, or
confederates with him, Then he may be tortured, yet not with
such Tortures as be Barborous and inhumane.226
By 1793, however, a strong consensus had been developed
against torture and other impermissible means of securing evidence.
Alschuler summarizes the situation as follows: “When the privilege
was embodied in the United States Constitution, its goal was simply
to prohibit improper methods of interrogation.”227 Even if that was
not its only goal – and there is some dispute about this – it seems clear
that it was at least one important goal. “Americans of the founding
generation unmistakably saw the privilege as a safeguard against
torture.”228
Indeed, Thomas Jefferson “would have replaced [George]
Mason’s words on compelled self-incrimination by a ban on the use
of judicial torture.”229 For these framers, the issue was not only
whether coerced statements could be used in a criminal trial, but also
whether the process of coercion – and especially torture – should be
prohibited by the United States Constitution.
It might still be argued that although the purpose of the
privilege was to prohibit torture and other improper methods of
interrogation, the means selected by the framers was an exclusionary
rule. There is, however, no convincing contemporaneous historical
evidence in support of that argument. Indeed, there is some evidence
that not all governmental conduct that was thought to be prohibited by
the privilege had an exclusionary rule as its remedy.230 And it is
225
Id. at 447-48.
Id at 120-21.
227
Alschuler, The Privilege at 185
228
Alschuler, The Privilege at 192 n.
61
229
Privilege at 135
230
CITE SUPPORT
226
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unlikely that the framers understood the self-incrimination provision
of the Fifth Amendment as authorizing the use of torture for obtaining
preventive information, as the ____ Century British torture warrant
procedure and the 17th Century Massachusetts procedure had done.
One prominent English treatise, apparently influential in the U.S.,
described the common law as prohibiting all torture, even that
directed against a non-defendant:
“By the common law of England, and that law is by adoption,
confirmed by statutes, the common law of Ireland, no such
engine of power as the rack, or nay other instrument of torture,
can be used to furnish the crown with evidence, extorted out
of the prison’s mouth against himself or any other person.”
(MacNally at 275) (emphasis added)
This certainly suggests that an exclusionary rule - - which would
provide no remedy for a non-defendant - - was not understood to be
the only means of enforcing a right not to be tortured.231
Nor is there any compelling evidence that the framers
understood the due process clause of the Fifth Amendment to be the
appropriate vehicle for safeguarding against torture. [AMPLIFY].232
If there was any provision of the Bill of Rights that was understood to
prohibit torture it was the privilege against self-incrimination. 233
That much seems clear from the history.
It would be much easier for historians, lawyers and judges
today if the framers of the Fifth Amendment had explicitly considered
and resolved the precise question, whether the application of torture to
a suspect was a stand-alone, independent violation of his
constitutional right against self-incrimination - - or whether the
introduction into evidence of the fruits of such torture was required to
complete the violation. But history does not always ask the precise
231
A debate between George Nicholas and George Mason (who drafted the
Virginia Bill of Rights) may also shed some light on the original understanding.
George Nicholas argued that the Bill of Rights “is but a paper check,” which was
frequently violated. The Debates in the Several State Conventions on the Adoption
of the Federal Constitution, 446. He went on: “If we had no security against torture
but our declaration of rights, we might be tortured to-morrow; for it has been
repeatedly infringed and disregarded. Id. at 451. Mason responded as follows: “the
worthy gentleman was mistaken in his assertion that the bill of rights did not
prohibit torture; for that one clause expressly provided that no man can given
evidence against himself;’ and that the worthy gentleman must know that, in those
countries where torture is used, evidence was extorted from the criminal himself.”
Id. at 452.
232
This was no different with regard to the due process clause of the Fourteenth
Amendment.
233
Perhaps the “cruel or unusual punishment” prohibition of the Eighth
Amendment [AMPLIFY]
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questions to which the current generation seeks answers. We must be
satisfied with the historical material that is accessible and reliable, and
we must acknowledge that the available sources often provides
incomplete answers, as a consideration of two early, important
American cases demonstrates.
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The Marbury and Burr Precedent
Among the most authoritative sources of the original
understanding of the privilege are the judicial opinions of Chief
Justice John Marshall, one of the nation’s greatest jurists who lived
during the founding era and headed the Supreme Court in the Years
following the ratification of the Bill of Rights. It just so happens that
he opined on aspects of the privilege in two of the most important
cases in American History. The first was Marbury v. Madison. the
decision that established the power of the Supreme Court to review
the unconstitutional actions of the executive. In that case, decided
just ten years after the ratification of the Bill of Rights, one of the
collateral issues was whether the acting secretary of state could be
compelled “to respond to the Chief Justice’s question regarding what
he had done with the commission at issue in the case. According to
historian Leonard W. Levy, he “probably had burned it.” The
secretary refused to answer on the ground, among others, that he
should not be “compelled to answer anything which might tend to
criminate himself.”234 The Court agreed, ruling that he was not
“obliged to state anything which would criminate him.”235 Clearly
then, Marshall understood the right (or the privilege, since he did not
specifically cite the Fifth Amendment) to extend beyond criminal
defendants at their own trials and to apply to witnesses in civil cases.
This application of the privilege clearly preceded the
development of the adversarial system and the right to counsel as we
know them and could be mastered, to the benefit of the witness
without the application of counsel. The witness in the Marbury case
was, in fact, a lawyer. Indeed he was “in the peculiar position of
being both a witness and counsel for the government” in that case.
Yet he had no obligation of disclosure because a truthful answer
might incriminate him.
The second opinion was written fourteen years after the
ratification of the Fifth Amendment — in the treason trial of Aaron
Burr, which has been called, “the greatest criminal trial in American
history.”236
234
Levy p.429
5 U.S. 137
236
Albert J. Beveridge, The Life of John Marshall (Cambridge, MA: Riverside P,
1919), vol. 3, p. 275. Another commentator notes:
While under criminal indictment for the murder [of Alexander Hamilton,
whom he killed in a duel] in New York and New Jersey, he had presided
over the 1804 impeachment trial of Justice Samuel Chase. This had led
one Federalist newspaper to quip that traditionally it was “the practice in
235
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Marshall’s opinion centered as well on the witness’ privilege,
but it also touched on the defendant’s privilege. The issue was
defined by the Court in the following terms:
“The attorney for the United State offers a paper in cipher,
which he supposed to
have proceeded from a person against whom he has preferred
an indictment for high treason, and another for a
misdemeanor, both of which are now before the grand jury,
and produces a person said to be the secretary or clerk of the
accused, who is supposed either to have copied this paper by
his direction, or to be able to prove, in some manner, that it
has proceeded from his authority. To a question demanding
whether he understands this paper the witness has declined
giving an answer, saying that the answer might criminate
himself; and it is referred to the court to decide whether the
excuse he has offered be sufficient to prevent his answering
the question which has been propounded to him.”237
Marshall began his analysis by articulating the “settled maxim
of law,” namely that “no man is bound to criminate himself.” This
maxim, he continued, “forms one exception to the general rule…that
every person is compellable to bear testimony in a court of justice.”238
It is interesting to note that Marshall did not cite the Fifth
Amendment, or any provision of the Constitution, in support of this
maxim. This might give rise to the inference that the witness’
privilege — as distinguished from the defendant’s privilege — was
not originally understood to be included within the words of the Fifth
Amendment. But Marshall then went on to discuss an aspect of the
defendant’s privilege, which is undoubtedly covered by the words of
Courts of Justice to arraign the murderer before the Judge, but now we
behold the Judge arraigned before the murderer.”
John C. Yoo, “The First Claim: The Burr Trial, United States v. Nixon, and
Presidential Power,” 83 Minnesota Law Review 1435 (1999), at p. 1439.
237
U.S. v. Burr 25 Fed. Case. 38, no 14, 692e C.C.D. Va. 1807
238
The Court answered the question put to it regarding the witness’ privilege as
follows:
“The gentlemen of the bar will understand the rule laid down by the court
to be this: It is the province of the court to judge whether any direct answer
to the question which may be proposed will furnish evidence against the
witness. If such answer may disclose a fact which forms a necessary and
essential link in the chain of testimony, which would be sufficient to
convict him of any crime, he is not bound to answer it so as to furnish
matter for that conviction. In such a case the witness must himself judge
what his answer will be; and if he says on oath that he cannot answer
without accusing himself, he cannot be compelled to answer.”
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the Fifth Amendment, also without referencing the constitution.239
Perhaps this was because he understood the Fifth Amendment simply
as constitutionalizing the common law and believed that the
constitution should be invoked only as a last resort, if the ordinary law
conflicted with it. The grand jury sought to obtain from the defendant
Burr himself the ciphered letter. The grand jury “are perfectly
aware,” according to its foreman, “that they have no right to demand
any evidence from the prisoner under prosecution (i.e. the defendant)
which may tend to criminate himself.” (emphasis added) Marshall
confirmed the grand jury’s view of the law: “the grand jury were
perfectly right in the opinion, that no man can be forced to furnish
evidence against himself…” (emphasis added)
This broad view - - namely that a defendant need not produce
physical evidence, even documents, that might incriminate him - - is
not the law today, though it was the law through much of our
history.240 As Justice Oliver Wendell Holmes Jr. put it in 1913: “A
party is privileged from producing the evidence but not from its
production.”241
[PARAGRAPH ON BOYD CASE AND ITS OVERRULING
WARDEN V. HAYDEN.]
Another issue that arose in the Burr Case was whether the
grand jury could “examine” the defendant on issues that were not selfincriminating. The Chief Justice “presumed that the grand jury
wished to know whether the person under prosecution could be
examined on other questions not criminating himself?” (p.95). The
answer will be surprising to the modern ear: “The Chief Justice knew
not that there was any objection to the grand jury calling before them
and examining any man as a witness who laid under an indictment.”
(pp.95-96). It is not clear whether the proposed examination would be
under oath or unsworn, but it does seem clear that Marshall believed
239
Marshall did cite the constitution in his opinion on whether the president could
be subpoenaed, but interestingly, he cited the wrong amendment:
“The Constitution and laws of the United States will now be considered
for the purpose of ascertaining how they bear upon the question. The
eighth amendment to the Constitution gives to the accused, “in all criminal
prosecutions, a right to a speedy and public trial, and to compulsory
process for obtaining witnesses in this favor.” (p. 43)
It is the Sixth, not the Eighth Amendment to accords those rights.
240
Cite Boyd and other cases, as well as Warden v. Hayden.
Johnson v. United States, 228 U.S. 457 (1913), at 458. It is still true that a
defendant need not respond to a subpoena if the act of production itself, as
distinguished from what is produced, might be incriminating. [expand and explain
production immunity]
241
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that a criminal defendant who was not yet indicted could be
examined, like any other witness, by the grand jury that was
considering his indictment, but that, also like any other witness, he
could refuse to answer those questions that might be incriminating.
We cannot be certain about any of this, because in the end the
issue was mooted by Burr’s representation to the court that “the letter
is not at this time in my possession….” (p. 96). He added that he “did
not put this letter out of my possession because I expected the grand
jury would take up this subject but from a suspicion that they might do
so.” (p. 97) (emphasis in original). Under today’s law, Burr’s
admission would almost certainly establish an obstruction of justice,
but apparently under the law at the time, a defendant was free to rid
himself of possibly incriminating evidence if he merely suspected,
rather than knew, that the grand jury was interested in the evidence.
Another perplexing aspect of Marshall’s view of the privilege
is his apparent limitation of its application to serious felonies such as
treason. He opined that “if the letter should relate to misdemeanor
and not to the treason, the court is not apprized that a knowledge and
concealment of the misdemeanor would expose the witness to any
prosecution whatsoever.” It is not clear whether Marshall meant that
fear of incrimination for a misdemeanor is never covered by the
privilege — an unlikely reading since there were serious
misdemeanors at the time that subjected defendants to harsh
punishment, even impeachment. The more likely reading is that a
prosecution of this particular witness on misdemeanor charges was
remote, perhaps because it would not be a crime to “conceal” a
misdemeanor.242 This latter reading would support a narrower
interpretation of the privilege, and one that would authorize immunity
as a technique for trumping the witness privilege.243
These opinions by America’s greatest Chief Justice in
America’s greatest criminal trial should give pause to anyone seeking
to discern the original understanding of the Fifth (or any other)
Amendment. Few contemporary American judges would recognize
the current privilege against self-incrimination in the rulings of Chief
242
Misprision of felony was a crime, but misprision of misdemeanor may not have
been—at least in Marshall’s view. [CHECK LAWS.]
243
Another episode that occurred during the Burr trial could also lend some support
to immunity:
“the President took the extraordinary step of personally interrogating one
of the key witnesses, of striking a plea bargain with him that exchanged a
pardon for testimony, and then of instruction the prosecutor on how to
examine him at trial.” (Letter from Thomas Jefferson to George Hay
(May 20, 1807), in 10 Words of Thomas Jefferson pp. 394-401 {Paul
Leicester Ford ed., 1905}; see also Leonard W. Levy, Jefferson & Civil
Liberties: The Darker Side pp. 70-73 (1963).)
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Justice Marshall. Even so central a figure in our own constitutional
jurisprudence as Marshall is Wittgenstein’s lion when it comes to
understanding the late eighteenth and early nineteenth century
privilege against self-incrimination. Its broad outlines are discernable
in the maxim that “no man is bound to criminate himself,” but the
details and applications of the modern privilege (or privileges) are
difficult to identify.
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Historical conclusions
Legal history rarely speaks with one clear voice. This is
especially so with regard to the history of rights. Rights are often
rooted in a recognition of wrongs and a desire to avoid their
recurrence. It should follow that the development of rights will be as
sporadic, episodic and inconsistent as the acknowledgement of
wrongs. The history of the privilege confirms this thesis.
Consider for example the issue of whether the privilege
protected a person from revealing information that was shameful, but
not criminal. In Ullman v. U.S, The Supreme Court ruled, in an
opinion by Justice Felix Frankfurter that,
“The interdiction of the Fifth Amendment operates only where
a witness is asked to incriminate himself - - in other words, to
give testimony which may possibly expose him to a criminal
charge. But if the criminality has already been taken away,
the Amendment ceases to apply.”244
Justices William O. Douglas and Hugo Black argued in dissent that,
“The Fifth Amendment was designed to protect the accused
against infamy, as well as against prosecution. …[T]he Italian
jurist Baccaria, and his French and English followers,
influenced American though in the critical years following our
Revolution. The history of infamy as a punishment was
notorious. Luther had inveighed against excommunication.
The Massachusetts Body of Liberties of 1641 had provided in
Article 60:
No church censure shall degrade or depose any man
from any Civil [p.451] dignities, office, or Authorities
he shall have in the Commonwealth.
Loss of office, loss of dignity, loss of face were
feudal forms of punishment. Infamy was historically
considered to be punishment as effective as fine and
imprisonment.
The Beccarian attitude toward infamy was a
part of the background of the Fifth Amendment. …It
was in this tradition that Lord Chief Justice Treby
244
Ullman v. U.S. 350
U.S. 422
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ruled in 1696 that ‘…no man is bound to answer any
questions that will subject him to a penalty, or to
infamy.” Trial of Friend, 13 How. St. Tr. 1, 17.
…It is no answer to say that a witness who
exercises his Fifth Amendment right of silence and
stands mute may bring himself into disrepute. If so,
that is the price he pays for exercising the right of
silence granted by the Fifth Amendment. The critical
point is that the Constitution places the right of silence
beyond the reach of government.
The Fifth
Amendment stands between the citizen and his
government. When public opinion casts a person into
the outer darkness, as happens today when a person is
exposed as a Communist, the government brings
infamy on the head of the witness when it compels
disclosure.
That is precisely what the Fifth
Amendment prohibits.”245
Accordingly, Justice Douglas and Black concluded that immunity
from prosecution is not sufficient to protect a witness from the evils
that the Fifth Amendment was designed to protect against.
The historian Leonard W. Levy argued that Douglas and
Black had come to the right result, but for the wrong historical
reasons.246 He cites numerous instances of dissidents and others
refusing to admit conduct that might be shameful but not criminal. He
concluded that, “history was on the side of Douglas and Black,
dissenting, with respect to the question of whether the “privilege”
embraced public infamy, but they did not know it.” He also
concluded that history was on the side of those who argued that “a full
grant of immunity superseded the witness’ right to refuse to answer
on grounds of self-incrimination.”247
As a matter of logic, however, these two conclusions are
irreconcilable. If the privilege protected against self-revelation of
shameful but non-criminal acts, then immunity could not trump the
privilege, since immunity cannot protect against shame. Under a
grant of immunity, the person must admit to his shameful behavior, he
simply can’t be criminally prosecuted for it.
Ullman v. U.S. 350 U.S. 422
There are numerous examples throughout early British and American history of
the privilege being invoked against infamy. See eg. Levy at pp. __________
____________
247
Levy, Political Science Quarterly p. 23
245
246
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These two conclusions are irreconcilable therefore as a matter
of logic, but they may both be correct as a matter of history. History
does not unfold logically, consistently or singularly. This was
especially so in systems, like the British or the American Colonial,
which lacked hierarchal judicial review in which a single Supreme
Court authoritatively interpreted a written constitution. There will
often be historical incident and events - - some even contemporaneous
with the other - - that speak with different voices or at least with
different tones. Advocates seize on the material that supports their
view while ignoring material that undercuts it. Good historians
present all the conflicting data and rarely expect a singular view.
Current research on the history of the Fifth Amendment’s
prohibition on compelled self-incrimination suggests that in 1793 it
was very much a work in progress. The right against selfincrimination, as we know it today, had not yet developed fully, either
in theory or in practice. The relevant words of the Fifth Amendment
purported to constitutionalize the existing common law - - to take a
snapshot of a streaming video. They also reflected several principles
that were deeply rooted in religion and history but were inchoate in
practice. The criminal justice system (or systems) then in existence in
the colonies was so dramatically different from our current approach
that direct analogies are inevitably misleading. The limited role of
counsel in most run of the mill criminal cases, the pressures on
defendants to speak in their own defense, the prohibition on
defendants testifying as sworn witnesses, the absence of instructions
on not drawing adverse inferences from silence and on the
presumption of innocence, the absence of police as we know them
and of back-room interrogation, and other contemporaneous
differences relegated the privilege to a largely symbolic role in most
cases. These symbols, however, were apparently of considerable
importance to the generation of framers who were well aware of the
abuses still prevalent in parts of Europe and only recently ended in
England.
Over the years following the adoption of the Fifth
Amendment, the role of the privilege was to change considerably.
The fifteen words came to be understood as incorporating several
different principles, all of which grew out of the history of the various
rules and principles that eventually gave rise to the modern privilege,
but none of which were completely developed by 1793. In light of
this complicated background, it is difficult to find specific historical
answers to every contemporary question of interpretation posed by the
amendment’s words, but a few conclusions seem plausible, if not
certain:
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1. The framers do not appear to have actually considered the
precise question posed directly by the Martinez case,
namely whether the privilege includes an independent
stand-alone right not to be subjected to coercion or
compulsion, or whether the exclusive right is not to have
the fruits of such compulsion or coercion admitted against
the defendant at his criminal trial. There is no historical
evidence of which I am aware that this issue was
discussed, debated or decided by the framers, or that the
words of the Fifth Amendment purported to answer this
question.
2. The framers, or at least many of them, probably
understood the amendment’s words as including a standalone independent right not to be subjected to “judicial
torture.” It seems likely that one purpose of the
amendment was to impose a limitation on government
against the introduction of torture as part of the American
criminal justice system. It is uncertain, however, what
understanding, if any, the framers might have had about
the remedy or remedies for violating this prohibition, but
there is no evidence that they understand exclusion as the
sole remedy for torture.
3. The framers, or many of them, probably also intended
some sort of independent right not to be subjected to
compelled judicial oaths in at least some contexts. Again
there is little historical evidence of the framers’
understanding with regard to remedies. There is some
historical evidence that exclusion was not the remedy
against compelled judicial oaths.248
4. Some aspects of the early privilege, most particularly the
“confession” rule - - or what I call the “suspect’s
privilege” - - carried with it an exclusionary remedy.
Others, most particularly the “witness” rule probably did
not.249
248
CITE PRIVILEGE
“The witness could raise the objection and might not be subject to contempt of
court, but there is no evidence until several decades later that exclusion of the
testimony from use in a subsequent proceeding against the witness was a
consequence of a violation of the witness privilege. IF a third-party witness was
wrongfully compelled to testify, the witness privilege did not bar the use of that
testimony in his subsequent criminal prosecution. And, as we will see, the ideas
249
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5. There is some evidence, but it is certainly not conclusive,
that courts sometimes, but rarely, enjoined the compulsion
or coercion of witnesses and allowed suits for damages by
those who were coerced, or even criminal prosecutions
against the coercers. But these tended to be unusual cases
that often grew out of inter-jurisdictional disputes, and so
not much can be derived from them.
6. There are early hints of a sort of pragmatic recognition of
functional “immunity” as a tool for compelling selfincriminating statements from witnesses, though the
doctrine itself was not formally enacted into law until
much later.
In summary therefore, there is considerable disagreement
among historians and other scholars about the original understanding,
or understandings, of the words of the Fifth Amendment that deal
with compelled self-incrimination. Was it understood to convey a
right to remain silent? And if so, what was the precise nature and
scope of that right?250 Was it understood to apply only to criminal
that exclusion would be a remedy was treated as a novelty in the 1847 Gorbett case,
suggesting strongly that the early-nineteenth-century witness privilege was not
backed up by the exclusionary rule that led to later exclusion of the confession
obtained.” (Smith p. 157)
250
Albert Alschuler wrote:
…in the winter of 1641-42, the governor of the Plymouth Colony asked
the colony’s ministers and magistrates “how far a magistrate may extract a
confession from the delinquent to accuse himself of a capital crime seeing
nemo tenetur prodere seipsum.” One of the three surviving responses
exhibited little shyness about asking incriminating questions of unsworn
suspects or about pressing these suspects through “force of argument.” It
declared, however, that physical force, threats of increased punishment,
and interrogation under oath were all impermissible:
I conceive that a magistrate is bound, by careful
examination of circumstances and weighing of
probabilities, to sift the accused; and by force of
argument to draw him to an acknowledgement of the
truth. But he may not extract a confession of a capital
crime from a suspected person by any violent means,
whether it be by an oath imposed, or by any punishment
inflicted or threatened to be inflicted, for so he may
draw forth an acknowledgment of a crime from a fearful
innocent. If guilty, he shall be compelled to be his own
accuser, when no other can, which is against the rule or
justice.
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defendants at their own criminal trials? And if so, how can that
understanding be reconciled with the practice at this time of not
permitting defendants to testify under oath at their own trials? Did it
apply to witnesses in legal proceedings other than criminal trials if
their witnesses could be subject to later criminal prosecution based on
their testimony? (Marshall answered yes.) If so, could this aspect of
the privilege be trumped by some sort of immunity? Did the privilege
apply to suspects who were being informally interrogated - - not
under oath - - by officials who were more like the police of a later
generation (e.g. constable, sheriffs etc.) than they were like judges? If
so, were there any limits on the nature of the interrogations that could
Summarizing the responses that the governor received, John
Winthrop saw two principles at work: first, a principle that one might call
“the Greenawalt principle,” affording suspects a right to silence in cases of
light suspicion but not when a strong evidentiary basis for interrogation
existed; and second, an unqualified prohibition of torture and of requiring
suspects to answer under oath:
[When a crime has been committed] and one witness or
strong presumptions do point out the offender, there the
judge may examine him strictly, and he is bound to
answer directly, though to the peril of his life. But if there
be only light suspicion, &c. then the judge is not to press
him to answer… but he may be silent, and call for his
accusers. But for examination by oath or torture in
criminal cases, it was generally denied to be lawful.
In 1677, the Virginia House of Burgesses declared that forcing
suspects to answer incriminating questions under oath was incompatible
with their natural rights. In the aftermath of Bacon’s Rebellion and its
suppression, the House resolved “that a person summoned as a witness
against another, ought to answer upon oath, but noe law can compell a man
to sweare against himselfe in any matter wherein he is lyable to corporall
punishment.”
These sources and others discussed below support this judgment:
The Fifth Amendment privilege prohibited (1) incriminating interrogation
under oath, (2) torture, and (3) probably other forms of coercive
interrogation such as threats of future punishment and promises of
leniency. The Amendment prohibited nothing more, or at least the sources
mention nothing more. The Self-Incrimination Clause neither mandated
an accusatorial system nor afforded defendants a right to remain silent. It
focused on improper methods of gaining information from criminal
suspects.
Albert W. Alschuler, “A Peculiar Privilege in Historical Perspective: The Right to
Remain Silence,” 94 Michigan Law Review 2625 (1996), at 2649-2652.
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be conducted? The one historical issue about which there appears to
be little disagreement among experts is that the privilege - - whatever
else it entailed - - was understood to include, in the words of
Professor Albert Alschuler, “an unqualified prohibition of
torture…”251
A fair reading of the historical material does not support the
conclusion that the only remedy understood by the framers to be
available to enforce the prohibitions against torture252 or its
equivalents was an exclusionary rule limited to a criminal defendant.
Nor does the material support the conclusion that the only nonexclusionary remedy for torture would be under the due process
clause. It seems likely, though not certain, that the framers
understood torture as an evil separate from and in addition to the use
to which it incriminating statements could be put at a defendants
subsequent criminal trial. They probably viewed torture as an evil
even if it was employed to gather evidence or information for use
other than in a criminal trial against the defendant who was subjected
to torture. There is certainly no compelling historical evidence to
support the conclusion that the framers understood the Fifth
Amendment privilege to authorize — or to put it more negatively to
not prohibit — the use of torture against persons who would not
become defendants in criminal trials. At the time of the ratification of
the Fifth Amendment, there was some historical precedent for the use
of torture against already convicted defendants to obtain information
against their confederates253, as well as to secure preventive
intelligence against traitors and others who posed security threats.
There were also those, most prominent among them the philosopher
Jeremy Bentham in England, who were publicly advocating the return
of torture for convicted killers who refused to reveal the whereabouts
of their dangerous confederates.254 There is nothing in the historical
record to suggest that the framers intended to incorporate these
controversial precedents and proposals as exceptions to the
prohibition against torture.
The historical record on the issue of torture is clearer than in
the issues of mere compulsion and coercion. There is no compelling
Albert W. Alschuler, “The Privilege and Common Law Criminal Procedure: The
Sixteenth to the Eighteenth Centuries,” in R.H. Helmholz, et al., The Privilege
Against Self-Incrimination: Its Origins and Developments (Chicago: The University
of Chicago Press, 1997), p. 192.
252
Add the judicial oath
253
See Mass Law and Bentham
254
See Jeremy Bentham, “On Torture” (c. 1780), in W.L. Twining and P.E.
Twining, “Bentham on Torture,” 24 Northern Ireland Legal Quarterly 305 (1973),
at 316-318.
251
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historical evidence to support the conclusion that coercion short of
torture (or compulsion short of the judicial oath) were seen by the
framers as independent evils separate from and in addition to the evil
of using the fruits of such coercion or compulsion against the
defendant at his criminal trial. Nor can it fairly be said that the
historical record clearly supports the opposite conclusion. There
appears to be insufficient historical material on the issues of coercion
and compulsion short of torture. Nor is there much historical
guidance on how to draw the line between torture and extreme
coercion, as the Massachusetts legislature tried to do in 1641 when it
authorized the use of torture as long as it was not “barbarous and
inhumane.”.255
255
This is somewhat reminiscent of the distinction made by the Bush
Administrations [CITE & DESCRIBE]
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The Privilege as Symbol
In addition to the original understanding of the right against
self-incrimination - - which is ambiguous on several important issues
- - it may be useful to look at the understanding over time, and most
particularly over recent generations. Justice Kennedy pointed to “the
understanding that has prevailed for generations now,” and chided the
majority for not being “more respectful” of that understanding. After
quoting Dean Erwin Griswold’s broad and somewhat symbolic
understanding of the “place the self-incrimination clause has secured
in our legal heritage.”256 Justice Kennedy argued that it,
“damages the law, and the vocabulary with which we impart
our legal tradition from one generation to the next, to
downgrade our understanding of what the Fifth Amendment
requires.”
The reality, however, is that the “understanding” of the right against
self-incrimination has varied considerably with the times, and
especially with the abuses experienced in a particular era. It has also
varied with the level of abstraction at which the right is described.
At one level, there is the privilege as “symbol,” and at another
there is the privilege as “law in action.” Put another way, there is
what lawyers and judges “say” about the privilege in the abstract, and
what lawyers and judges “do” about it in concrete cases. To illustrate
this difference, I will chart some of the most authoritative and
influential hortatory statements made about the privilege throughout
our history, and then contrast these broad statements with the far
narrower holdings of the courts in actual cases.
What has been said about the
What the Court has held
privilege:
about the privilege:
The privilege as symbol
The right in action
“…the Fifth Amendment can serve
as a constant reminder of the high
standards set by the Founding
Fathers, based on their experience
with tyranny. It is an ever-present
reminder of our belief in the
“The Fifth Amendment has been very nearly a lone sure rock in a time of storm.
It has been one thing which has held quite firm, although something like a
juggernaut has pushed upon it. It has, thus, through all its vicissitudes, been a
symbol of the ultimate moral sense of the community, upholding the best in us,
when otherwise there was a good deal of wavering under the pressures of the
times.” E. Griswold, The Fifth Amendment Today 73 (1955).
256
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importance of the individual, a
symbol of our highest aspirations.
As such it is a clear and eloquent
expression of our basic opposition
to collectivism, to the unlimited
power of the state. It would never
be allowed by communists, and
thus it may well be regarded as one
of the signs which sets us off from
communism…. Let us never forget
the great tradition of individual
liberty in this country. There are
few clearer symbols of this
tradition than the Fifth
Amendment.”257 (emphasis added)
“It is truly an old friend, with an
ancient and I believe useful
history…. I would like to venture
the suggestion that the privilege
against self-incrimination is one of
the great landmarks in man’s
struggle to make himself
civilized.”258
[TO BE ADDED]
“I believe the Fifth Amendment is,
and has been through this period of
crisis, an expression of the moral
striving of the community. It has
been a reflection of our common
conscience, a symbol of the
America which stirs our hearts….
(emphaisis added)
257
Erwin N. Griswold, The 5th Amendment Today (Cambridge, MA: Harvard UP,
1955), pp. 81-82.
258
Erwin N. Griswold, The 5th Amendment Today (Cambridge, MA: Harvard UP,
1955), p. 7.
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“The fundamental value that the
privilege reflects is intangible, it is
true; but so is liberty, and so is
man’s immortal soul. A man may
be punished, even put to death, by
the state; but if he is an American
or an Englishman or a free man
anywhere, he should not be made
to prostrate himself before its
majesty. Mea culpa belongs to a
man and his God. It is a plea that
cannot be exacted from free men
by human authority. To require it
is to insist that the state is the
superior of the individuals who
compose it, instead of their
instrument.”259
“The reprobation of compulsory
self-incrimination is an established
doctrine of our civilized society.
As stated by appellant’s counsel, it
is the ‘result of the long struggle
between the opposing forces of the
spirit of individual liberty, on the
one hand, and the collective power
of the State, on the other.’ As
such, it should be condemned with
great earnestness. [CHECK THIS
QUOTE] [Alan, this quote is
right. -Alex]
“The essential and inherent
cruelty of compelling a man to
expose his own guilt is obvious to
every one, and needs no
illustration. It is plain to every
person who gives the subject a
moment’s thought.
“A sense of personal
Abe Fortas, “The Fifth Amendment: Nemo Tenetur Prodere Seipsum,” 25
Journal (Cleveland Bar Association) 91 (1954), at pp. 99-100.
259
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degradation in being compelled to
incriminate one’s self must create a
feeling of abhorrence in the
community at its attempted
enforcement.”260
“[The privilege against selfincrimination] is a part of the
historical establishment of a
balance, a balance between the
power of the state and the rights of
the individual, which I suppose
more than anything else is the
essence of modern democracy.”261
“The appearance of the privilege
against self-incrimination — the
guaranty that no person ‘shall be
compelled in any criminal case to
be a witness against himself’ —
was a landmark event in the history
of Anglo-American criminal
procedure.”262
“The privilege against selfincrimination [is] the essential
mainstay of our adversary
system….”263
“This command of the Fifth
Amendment… registers an
260
Brown v. Walker, 161 U.S. 591 (1896), at 637 (Field, J. dissenting).
Telford Taylor, “The Constitutional Privilege against Self-Incrimination,”
Annals of the American Academy of Political and Social Science, Vol. 300 (July
1955), p. 116.
262
John H. Langbein, “The Historical Origins of the Privilege Against SelfIncrimination at Common Law,” 92 Michigan Law Review 1047 (1994).
263
Miranda v. Arizona, 384 U.S. 436 (1966), at 460 (Warren, C.J. majority).
261
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important advance in the
development of our liberty….”264
“[T]he American system of
criminal prosecution is
accusatorial, not inquisitorial, and
… the Fifth Amendment privilege
is its essential mainstay.”265
“An experienced civil officer
observed, ‘There is a great deal of
laziness in it. It is far pleasanter to
sit comfortably in the shade
rubbing red pepper into a poor
devil’s eyes than to go about in the
sun hunting up evidence.’ This
was a new view to me, but I have
no doubt of its truth.”266
“The makers of our Constitution
undertook to secure conditions
favorable to the pursuit of
happiness. They recognized the
significance of man’s spiritual
nature, of his feelings and of his
intellect. They knew that only a
part of the pain, pleasure and
satisfactions of life are to be found
in material things. They sought to
protect Americans in their beliefs,
their thoughts, their emotions and
their sensations. They conferred,
as against the government, the right
to be let alone — the most
comprehensive of rights and the
264
Ullmann v. United States, 350 U.S. 422 (1956), at 426 (Frankfurter, J. majority).
Malloy v. Hogan, 378 U.S. 1 (1964), at 7 (Brennan, J. majority).
266
James Fitzjames Stephen, A History of the Criminal Law of England (London:
Macmillan, 1883), vol. 1, p. 442 n. 1, writing in the context of a prohibition on
questioning prisoners.
265
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right most valued by civilized men.
To protect that right, every
unjustifiable intrusion by the
government upon the privacy of the
individual, whatever the means
employed, must be deemed a
violation of the Fourth
Amendment. And the use, as
evidence in a criminal proceeding,
of facts ascertained by such
intrusion must be deemed a
violation of the Fifth.”267
“It reflects many of our
fundamental values and most noble
aspirations: our unwillingness to
subject those suspected of crime to
the cruel trilemma of selfaccusation, 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 stateindividual 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
267
Olmstead v. United States, 277 U.S. 438 (1928), at 478-79 (Brandeis, J.,
dissenting).
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shelter to the guilty,’ is often ‘a
protection to the innocent.’”268
“This history demonstrates that the
fight for the privilege against selfincrimination was a part, and an
important part, of the great struggle
against the oppression of the
individual by the church and
state…. It is my view that the
privilege against self-incrimination
represents a basic adjustment of the
power and rights of the individual,
and of the state. That, it seems to
me, is the lesson to be drawn from
its history.”269
““Few people, I believe, would
suggest that the 4th Amendment,
protecting people against
unreasonable searches and seizures,
should be repealed, even although
its primary effect, in practice, it the
protect the guilty. Most of us
would agree that even if a stock of
narcotics is in a man’s house, the
police should not be authorized
summarily to force an entrance and
to obtain this incriminating
evidence. There is little difference
in theory, I suggest, between
breaking into a man’s house and
forcing an entry into his mind into
compel him to testify against
himself. Both, I think, are
instruments that may properly be
denied to the state even although
268
Murphy v. Waterfront Commission, 378 U.S. 52 (1964), at 55 (citations omitted)
(Goldberg, J. majority).
269
Abe Fortas, “The Fifth Amendment: Nemo Tenetur Prodere Seipsum,” 25
Journal (Cleveland Bar Association) 91 (1954), at p. 97.
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they would be effective methods of
law enforcement. Indeed, it is
interesting to note that in the course
of man’s battle for his individual
sanctity, history has given
preferred position to the
individual’s right to defend himself
by withholding incriminating
evidence. This right is not subject
to defeasance upon a showing of
probable cause, as is a man’s right
to be protected against search of his
household and person.”270
“I am confident that we should
resolutely oppose any effort to
repeal it, and that we should
patiently and devotedly attempt to
spread an understanding of its
glorious history and its profound
importance to a tradition which,
although English in origin, is
peculiarly American: the sanctity
of the individual against the
collective power of the state… It is
this, after all, that is the basic
principle which we assert in our
mortal struggle with
Communism.”271
“Totalitarian states, no matter the
name they bear, always utilize
coerced testimony wherever
necessary to arrive at their desired
verdicts because to them the ends
justify the means. This is not true
in the democratic republics of the
world, and this is a principal
Abe Fortas, “The Fifth Amendment: Nemo Tenetur Prodere Seipsum,” 25
Journal (Cleveland Bar Association) 91 (1954), at p. 99
271
Abe Fortas, “The Fifth Amendment: Nemo Tenetur Prodere Seipsum,” 25
Journal (Cleveland Bar Association) 91 (1954), at p. 104.
270
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distinction between freedom and
dictatorship.”272
“[T]he establishment of the
privilege is closely linked
historically with the abolition of
torture. Now we look upon torture
with abhorrence. But torture was
once used by honest and
conscientious public servants as a
means of obtaining information
about crimes which could not
otherwise be disclosed. We want
none of that today, I am sure.”273
The police officer “drew her
gun and shot Martinez several
times, causing severe injuries
that left Martinez permanently
blinded and paralyzed from the
waist down…. Chavez
accompanied Martinez to the
hospital and then questioned
Martinez there…. At first, most
of Martinez’s answers consisted
of ‘I don’t know,’ ‘I am dying,’
and ‘I am choking.’… Because
we find that Chavez’s alleged
conduct did not violate the SelfIncrimination Clause, we
reverse the Ninth Circuit’s
denial of qualified immunity as
to Martinez’s Fifth Amendment
claim.”274
The Fifth Amendment privilege is
so fundamental to our system of
constitutional rule and the
expedient of giving an adequate
warning as to the availability of the
privilege so simple, we will not
pause to inquire in individual cases
whether the defendant was aware
of his rights without a warning
being given.”275
“The Miranda rule is not a code
of police conduct, and police do
not violate the Constitution (or
even the Miranda rule, for that
matter) by mere failures to
warn.”276
Adrian B. Fink, Jr., “The Privilege Against Self-Incrimination — A Critical
Reappraisal,” 13 Western Reserve Law Review 722 (1962).
273
Erwin N. Griswold, The 5th Amendment Today (Cambridge, MA: Harvard UP),
p. 7.
274
Chavez v. Martinez, 538 U.S. 760 (2003), at 764, 773.
275
Miranda v. Arizona, 384 U.S. 436 (1966), at 444, 468.
276
United States v. Patane, 542 U.S. 530 (2004), at 637.
272
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“[T]he basic purposes that lie
behind the privilege against selfincrimination do not relate to
protecting the innocent from
conviction, but rather to preserving
the integrity of a judicial system in
which even the guilty are not to be
convicted unless the prosecution
‘shoulder the entire load.’”277
“The real objection is that any
system of administration which
permits the prosecution to trust
habitually to self-disclosure as a
source of proof must itself suffer
morally thereby. The inclination
develops to rely mainly upon such
evidence, and to be satisfied with
an incomplete investigation of
other sources. The exercise of the
power to extract answers begets a
forgetfulness of the just limitations
of that power.”278
“In this case we must decide
whether a failure to give a
suspect the warnings prescribed
by Miranda v. Arizona requires
suppression of the physical
fruits of the suspect’s unwarned
but voluntary statements….
Because the Miranda rule
protects against violations of
the Self-Incrimination Clause,
which, in turn, is not implicated
by the introduction at trial of
physical evidence resulting
from voluntary statements, we
answer the question presented
in the negative.”279
Many of the most powerful of these hortatory statements were
made during or after the abuses of McCarthyism. During the century
an a half following the ratification of the 5th Amendment, little was
said about the importance of the right against self-incrimination. This
should not be surprising because an appreciation of rights often
follows a recognition of wrongs. As I have written elsewhere:
“It is incontestable that rights change over time and place, but
they do not change at a steady pace or in a symmetrical
manner. Long periods of time pass with few or no changes in
rights. Then, suddenly, there is a burgeoning of new rights.
My late colleague Stephen Jay Gould observed a phenomenon
in nature that he called “punctuated equilibrium,” pursuant to
which evolutionary changes “happen in fits and starts.”
Though I am generally wary of using scientific observations of
277
Tehan v. United States, 382 U.S. 406 (1966), at 415.
John Henry Wigmore, Evidence in Trials at Common Law (Boston: Little,
Brown, 1961), §2251. (ORIGINAL MUST BE CHECKED.)
279
United States v. Patane, 542 U.S. 630 (2004), at 633-34.
278
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natural phenomena as metaphors for human inventions, there
are some striking similarities between Gould’s observations
about evolution and my observations about rights.280 Gould’s
approach has been summarized as follows:
Darwin saw evolution as a slow, continuous process,
without sudden jumps. However, if you study the
fossils of organisms found in subsequent geological
layers, you will see long intervals in which nothing
changed (“equilibrium”), “punctuated” by short,
revolutionary transition, in which species became
extinct and replaced by wholly new forms. Instead of
a slow, continuous progression, the evolution of life on
Earth seems more like the life of a soldier: long
periods of boredom interrupted by rare moments of
terror.281
….
Though human inventions such as rights, and the
wrongs that stimulate them, are neither as unintelligent nor as
purposeless as natural changes, they too seem “to happen in
fits and starts.” The history of rights shows long periods
during which few changes seem to occur. Then a grievous
human wrong, like the Holocaust, suddenly takes place. The
world eventually acknowledges the wrong and responds with a
burgeoning of rights, as occurred following the Second World
War, when international human rights took giant steps
forward. Sometimes the wrong is not sudden, but rather of
long duration, such as slavery. It is the recognition of the
wrong – or its defeat after a conflict – that serves as a stimulus
for the development of the right. The post-Civil War
constitutional amendments quickly turned a right to won
slaves into a right not to be owned as a slave.
There are numerous historical examples of rights
burgeoning immediately after the acknowledgment of
grievous wrongs, though this has certainly not always been the
case. There have also been some historical examples of rights
280
This is, perhaps, no accident since I taught a course with Gould and with Robert
Nozick over several years in which we compared and contrasted the epistemologies
of science, philosophy, and law.
281
Stephen Jay Gould and Niles Eldredge, “Punctuated Equilibria: The Tempo and
Mode of Evolution Reconsidered,” Paleobiology 3 (1997), pp. 115-151. See also
“Punctuated Equilibrium” by Francis Heylighen at Principia Cybernetica Web
(http://pespmc1.vub.ac.be/Punctueq.html; accessed August 25, 2004). The GouldEldredge Theory was not without its critics, one of whom, unfairly but cleverly,
called it “evolution by jerks.”
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quickly contracting in the aftermath of wrongs that were
believed to be caused by excessive rights. We may experience
such a contraction in response to the terrorist attacks of recent
years, and the contraction may become more extreme and
widespread if terrorism were to escalate.” 282
Both aspects of this phenomenon are apparent in the history of
attitudes toward the privilege against self-incrimination, which has
gone through various cycles over time. It began as closely associated
with the religious and political rights. John Lambert, who was burned
at the stake as a heretic in 1537, argued this association in defense of
his refusal to answer questions about his religious and political
beliefs:
“For it is in the law thus: ‘No man is bound to betray himself.’
Also in another place of the law it is written, ‘Cogitationis
poenam nemo patiatur,’ ‘No man should suffer punishment of
men for his thought.’ To this agreeth the common proverb,
that is thus:’ Thoughts be free, and need pay no toll.’283
In nineteenth and early twentieth century America, it was primarily a
trial right. Then, with the advent of congressional investigations,
culminating in the McCarthy era, its focus was largely on political
investigations. Now it is once again primarily a trial right that is in
danger of contraction because of the war on terrorism and the
perceived need to employ coercion in order to secure preventive
intelligence.284
At another level, the fifteen words of the privilege have been
understood, on one end of the continuum, as reflecting broad political
rights of all persons, and on the other end of the continuum, as
granting a narrow procedural trial remedy only to criminal defendants
at their own trials.
The Supreme Court’s six to three majority in the Martinez
case interpreted the privilege in its narrowest possible way. The three
person partial dissent interpreted the privilege only slightly more
broadly by recognizing a stand-alone right, enforceable by a damage
remedy not to be subject to “torture or its close equivalents.” The
282
Alan Dershowitz, Rights from Wrongs (New York: Basic, 2004), pp. 93-95.
Levy, p. 4
284
It is interesting that the right against self-incrimination seems to have played no
significant role during the period of the Alien and Sedition laws, when men’s
thoughts and allegiances [?] were subjected to government sanctions. Perhaps this
is because few of the cases actually went to trial before the laws were rescinded
[expand and cite]. [See Charlie’s Memo
283
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dissenters apparently agreed that the privilege did not contain a standalone right not to be compelled by the threat of contempt or coercion
(short of torture or its close equivalents) to make self-incriminating
statements. The only right a person has is to exclude the fruits of such
compulsion from his criminal case.
Not a single justice suggested any broader political right to
remain silent or to keep the government out of any private or political
enclave, as prior judicial and academic statements had suggested. This
disconnect between what the courts have said about the right against
self-incrimination and what they have ruled about that right raises
broader questions - - questions that transcends the right against selfincrimination - - of the general role of constitutional rights in the
context of our system of governance.
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Rights as Specific Limitations on Particular Governmental
Actions Versus Rights as General Guides to Governance
The entire Constitution, and most especially the Bill of Rights,
contains numerous provisions that have multiple meanings at varying
levels of abstraction. They can be read quite narrowly as entrenching
a particular right in a specific, often time-bound, context. The same
words can also be read quite broadly as enshrining a more general
approach to governance. In 1962, I edited285 a Yale Law Journal note
by my friend, colleague and sometime co-author John Hart Ely that
made this point with regard to an apparently obscure provision of the
Constitution prohibiting any “bill of attainder” from being enacted by
congress or by state legislatures. (Article I 99, 10)
At one level, this prohibition could be read as merely
disempowering legislatures from doing what the British Parliament
had regularly done: namely enacting laws that sentenced traitors to
death and “attainted” their blood without a judicial trial. Read so
narrowly, the Constitutional provision would not have current
relevance since our legislatures have not passed bills of attainder
since revolutionary times. To avoid such a dead letter approach, some
courts have given the bill of attainder clause a broader reading
designed to prevent “the kinds of evils" caused by such bills, even if
the form was somewhat different. As the Supreme Court said in
1866:
“If the [bill of attainder] inhibition can be evaded by the form
of the enactment its insertion in the fundamental law was a
vain and futile proceeding.”286
This “functional approach”287 — identifying “the kinds of
evils” that were the focus of the framers and determining whether
285
See Footnote 1, The Bounds, p. 330
Quoted in The Bounds at p. 333
287
Ely was clear what he meant by functional:
“The word ‘functional’ is sometimes used to mean “result-oriented.” This
is not the meaning here intended, for of course the “literalist” position is as
result-oriented as the position here described. Rather, “functional” is used
to designate that approach which interprets a Constitutional provision in
light of the sort of evil against which it was directed. It thus might perhaps
be termed “historical functionalism.” (The Bounds at p. 333)
286
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similar or comparable evils were present in contemporary legislative
actions — was employed by Chief Justice John Marshall as far back
as 1810, when he suggested, in dictum, that the “bill of attainder”
clause may prohibit not only laws that fall technically within that
narrow category, but rather all legislatively imposed punishments that
are inflicted without judicial trial.288
John Hart Ely argued that the clause should be read even more
broadly, as an important aspect of the separation of powers that serves
as a structural protection against tyranny:
“[T]he dual rationale of the separation of powers – fear of
overconcentration of power in any one branch, and a feeling
that the methods of selection and instructional trappings
render the various departments suited for different jobs – is
reflected in the bill of attainder clause. Not only was there a
general fear of legislative power on the part of the founding
fathers, but there was also a specific realization that the
legislative branch of government is more susceptible than the
judiciary to such influences as passion, prejudice, personal
solicitation, and political motives, and that it is not bound to
respect all the safeguards placed upon judicial trials. The bill
of attainder clause is an implementation of their judgment that
these factors render the legislature a tribunal inappropriate to
decide who comes within the purview of its general rules.”289
He saw the bill of attainder clause (taken together with the ex post
facto clause) as “serving a function analogous to Article III’s
“Restriction of Judicial Action”:
“Roughly, article III, by limiting federal courts to cases and
controversies, tells them, at least in theory, two things. First,
they – unlike the legislature – may not create broad rules; they
must content themselves with applying the laws, either
statutory or Constitutional, to the particular disputes before
them. And second, because they are restricted to adjudicating
the rights of the litigants before them, they can act only
retrospectively. On the other hand, the prohibition of ex post
facto laws (and notions rooted in due process and the
obligation of contracts clause) tell the legislature that in
general it can act only prospectively. The bill of attainder
clause, it is submitted, is a broad prohibition completing the
288
289
Quoted in The Bounds at p. 333
The Yale Law Journal Vol. 72, 330 at p. 346.
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legislative analogue of article III. For it tells legislatures that
they may not apply their mandates to specific parties; they
instead must leave the job of application to other tribunals.”290
Other scholars, and several courts, have disagreed with the Ely
analysis, and this is not the place to debate its merits. I cite it merely
to illustrate the observation that Constitutional provisions may bear
both a narrow technical reading and a somewhat broader structural
reading.291
Similar dichotomous readings have been accorded virtually
every one of the provisions of the Bill of Rights. Many Americans
understand the First Amendment to guarantee them the “right of free
speech.” But as I have written elsewhere (in response to arguments
that the Commissioner of Baseball violated the First Amendment by
suspending a player for making bigoted remarks in an interview):
“Despite the common myth that we can say anything
we please in this country, the fact is that our Bill of Rights
does not grant Americans any general right of free speech.
That’s why bud Selig, the baseball commissioner, can
suspend and fine John Rocker, the Atlanta Braves pitcher, for
expressing bigoted views in a magazine interview.
…
But to conclude that baseball has the right to suspend
Rocker does not mean that it was right to do so.
The First Amendment prohibits “Congress” and, by
modern interpretation, federal and state governments from
"abridging the freedom of speech, or of the press.” The
amendment, then, is a restriction on government power, not on
290
The Bounds at p. 347.
Justice Felix Frankfurter, who read the bill of attainder clause narrowly,
proposed a different division:
“Broadly speaking, two types of Constitutional claims come before this
Court. Most Constitutional issues derive from the broad standards of
fairness written in to the Constitution (e.g., “due process,” “equal
protection of the laws,” “just compensation”), and the division of power as
between States and Nation. Such questions, by their very nature, allow a
relatively wide play for individual legal judgment. The other class gives
no such scope. For the second class of Constitutional issues derives from
very specific provisions of the Constitution. These had their source in
definite grievances and led the Fathers to proscribe against recurrence of
their experience. These specific grievances and the safeguards against
their recurrence were not defined by the Constitution. They were defined
by history. Their meaning was so settled by history that definition was
superfluous. Judicial enforcement of the Constitution must respect these
historic limits.” (Lovett, 328 U.S. at 321, Quoted in The Bounds at 341)
291
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a right to say anything without fear of all consequences. The
First Amendment says nothing about the power of private
employers, universities, or sports leagues to censor or punish
speakers who express views with which they disagree.
Thus Selig was well within his rights as the chief
executive of a private corporation to make an independent
decision to suspend Rocker.
The problem is that his decision violated the spirit of
free speech that animates the First Amendment. The
Constitution may impose limits only on government, but the
First Amendment is premised on the idea that there should be
a free marketplace of ideas.”292 [Emphasis added]
A similar analysis can be applied to the establishment clause
of the First Amendment which begins with the command that
“Congress shall make no law…respecting an establishment of
religion.” The concept of establishing a religion had a specific,
technical meaning in 1793, when several colonies and states had
recent histories of selecting one particular protestant sect - Anglicanism, Baptism, Congregationalism - - as the “official” religion
of the government. The established religion received governmental
funding supported by the revenues raised from all tax-paying citizens,
including members of other faiths that were “tolerated,” at best and
discriminated against or even banned at worst. It was a crime in
Massachusetts as late as _______-- for a Catholic priest openly to
celebrate mass.
The narrow understanding of the establishment clause at the
time of its ratification merely forbade the federal government from
establishing one branch of Protestantism as the single official religion
of the United States. It left each state free to establish a particular
religion of its choice. Although several state Constitutions prohibited
establishing an official state religion, ____________,
_____________, and ___________ did have established religions
until _____________. [Fill in and specify which states and which
religions with cites].
Today, only extremists from the religious right and a few
right-wing politicians and academics would limit the establishment
clause to its original narrow understanding (even as amended by the
292
Shouting Fire, pp. 139-140
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Fourteenth Amendment which - - according to Supreme Court
decisions - - applies the First Amendment to the states through the
due process clause).293 Even Justices Scalia and Thomas now
acknowledge that the establishment clause has been given a far
broader interpretation by history and precedents. Scalia has written:
[FILL IN WHAT SCALIA AND THOMAS HAVE
WRITTEN]
There continues to be considerable controversy over the
precise interpretation of the establishment clause, but even the
narrowest current interpretation goes well beyond the technical
prohibition that probably constituted the original understanding - - at
least by many of those who framed and ratified the First
Amendment.294 It has become an important symbol of the separation
of church and state.
Other aspects of the First Amendment - - the free press,
assembly and petition- provisions - - also have both narrow technical
and broader structural interpretations. At the broadest level, they - like the bill of attainder clause - - can be viewed as part of our system
of checks and balances. Not only does each branch of government
check and balance the other branches, but non governmental
institutions - - especially the so called “Fourth estate” - - can serve as
checks on government. As John Hart Ely wrote in his masterful book
Democracy and Distrust, one of the important functions of the courts
is to keep open the channels of democracy, which surely include all
the institutions and practices protected by the First Amendment.295
The Second Amendment is a paradigmatic illustration of a
provision with both a narrow and broad meaning. In this instance - as contrasted with most others296 - - it is generally the conservatives
who interpret its words broadly and the liberals who interpret them
narrowly. The Amendment reads as follows:
“A well regulated militia, being necessary to the security of a
free state, the right of the people to keep and bear arms, shall
not be infringed.”
293
Quote Meese and others - - Alan Keyes
There is a plausible argument that the text of the establishment clause - - the
deliberate use of the inelegant phrase “respecting an establishment of religion”
rather than the more common “establishing any religion” - - was intended to
prohibit a broader array of actions beyond technical establishments. See
___________
295
Ely, Democracy and Distrust
296
Another example of this “flip” is when property rights are involved. See
______________294
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The narrow reading, favored by gun control advocates, focuses on the
initial clause, and would limit the right to a collective one designed to
preserve well-regulated state militias by prohibiting the federal
government from disarming them. The broad reading, favored by gun
advocates, focuses on the latter clause and reads the initial words as
merely hortatory. It would grant not only “the people,” but each
individual as well, the stand-alone right to keep and bear arms without
abridgment by the federal government, and following the enactment
of the Fourteenth Amendment, by state governments.297 As Charlton
Heston, the president of the National Rifle Association, has argued
that the second amendment was a symbolic significance that
transcends its specific words:
I believe every good journalist needs to know why the Second
Amendment must be considered more essential than the First
Amendment…. I say that the Second Amendment is, in order
of importance, the first amendment. It is America's First
Freedom, the one right that protects all the others. Among
freedom of speech, of the press, of religion, of assembly, of
redress of grievances, it is the first among equals. It alone
offers the absolute capacity to live without fear. The right to
keep and bear arms is the one right that allows “rights” to exist
at all.298
There are, of course, textual problems with the NRA’s broad
interpretation. The word “people” suggests a collective right and the
words “keep and bear arms” suggests a military context, since hunters
and sportsmen do not “bear arms.” As Professor Akhil Amar has
demonstrated, “state Constitutions on the books in 1785 consistently
used the phrase ‘bear arms’ in military contexts and no other.”299
There are also textual problems with the narrower interpretation: the
words “shall not be abridged” modify the “the right of the people,”
rather than the necessity of a militia.
I respectfully disagree with Professor Amar’s suggestion that
the word “people,” as contrasted with the word “person,” connotes a
collective, as contrasted with an individual, right. After all, the
297
The Fourteenth Amendment issues proves something of a dilemma for some
conservatives - - such as Edwin Meese - - who do not believe that the Fourteenth
Amendment applies the Bill of Rights to the states, but would like to interpret the
Constitution as prohibiting state abridgment of the right to keep and bear arms.
298
Charlton Heston, speech to the National Press Club, February 11, 1997,
accessible at http://www.save-now.com/news/archives/Charlton-Heston-GunControle.htm.
299
America’s Constitution, p. 323
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Fourth Amendment begins with “the right of the people to be secure
in their persons, houses and effects against unreasonable searches and
seizures.”300 Surely this includes an individual right, as does the First
Amendment’s “right of the people…to petition the government for a
redress of grievances.” But Amar is surely correct that the “slippery”
words of the Second Amendment were based on “legal and social
foundations” that have “washed away over the years.” The Supreme
Court, which has not yet provided a definitive interpretation of this
amendment, will be faced with a daunting challenge against the
background of overheated political and ideological conflict.
Part of this challenge will be whether to accord the Second
Amendment a narrow, technical, and time-bound interpretation, or a
broader, more functional and contemporary relevant construction.
Even the Third Amendment - - which seems as narrow,
technical and anachronistic as any amendment - - has been given a
broad interpretation by some. The Amendment reads as follows:
“No soldier shall, in time of peace be quartered in any house,
without the consent of the owner, nor in time of war, but in a
manner to be prescribed by law.”
In Griswold v. Connecticut, TO BE CONTINUED
300
Amar responds to this argument as follows:
“Why then, did the Fourth even mention the more republican-sounding
phrase “the people”?
Perhaps to highlight the part that civil jurors, acting collectively and
representing the electorate, were expected to play in deciding which searches and
seizures were reasonable and how much to punish government officials who
searched or seized improperly. Private “persons” would remain the core rightsholders, but “the people on civil juries would retain a vital role in shaping the
boundaries of the right.” (Amar, America’s Constitution at p. 326)
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Should Any Provisions of the Constitution be Interpreted
Symbolically?
Justice Scalia has opined on the question of whether the words
of the Constitution should be interpreted broadly as the aspirational
views of the framers or narrowly as a codified catalogue of specific
and limited rights. He articulated his position as follows in response
to a quite different approach proposed by my colleague Lawrence
Tribe:
Professor Tribe describes these roaming provisions as
designed to “reflect[] … the aspirations of the former
colonists about what sorts of rights they and their posterity
would come to enjoy against their own government” (emphasis
added). I do not believe that. If you want aspirations, you can
read the Declaration of Independence…. Or you can read the
French Declaration of the Rights of Man and of the Citizen,
adopted two years before our Bill of Rights…. There is no
such philosophizing in our Constitution, which, unlike the
Declaration of Independence and the Declaration of the Rights
of Man, is a practical and pragmatic charter of government.
The aspirations of those who adopted it are set forth in its
prologue—“to insure domestic Tranquility,” among other
things, and “to secure the Blessings of Liberty to ourselves
and our Posterity.” The operative provisions of the document,
on the other hand, including the Bill of Rights, abound in
concrete and specific dispositions. In addition to those
described earlier, see, for example, the Third Amendment
(“[n]o Soldier shall, in time of peace be quartered in any
house, without the consent of the Owner”), the Fourth
Amendment (“no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized”), and the Seventh Amendment (“[i]n Suits at
common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved”).
It would be most peculiar for aspirational provisions to
be interspersed randomly among the very concrete and hence
obviously nonaspirational prescriptions that the Bill of Rights
contains—“jury trials in suits at common law for more than
twenty dollars,” followed by “all men are created equal,”
followed by “no quartering of troops in homes.” It is more
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reasonable to think that the provisions are all of a sort.
Professor Tribe emphasizes that such provisions as the
guarantees of “the freedom of speech” and of “due process of
law” are abstract and general rather than specific and concrete;
but abstraction and generality do not equate with aspiration.
The context suggests that the abstract and general terms, like
the concrete and particular ones, are meant to nail down
current rights, rather than aspire after future ones….301
Scalia’s list of illustrations – no quartering of troops, the
warrant requirement, the twenty dollar criteria for civil trials – can of
course be used to support precisely the opposite conclusion: namely,
that the framers knew how to use narrow language when they wanted
to disempower the courts from changing specific rules, such as the
age requirements for office and the twenty dollar criteria (though I am
personally convinced the latter was a simple drafting error). The fact
that they used more open-ended language-- precisely of the sort they
knew common law courts would have to interpret over time-suggests that they may not necessarily have meant to “nail down” all
rights, such as those mandating “equal protection,” “due process” and
the prohibition against “cruel and unusual punishments” or “excessive
bail.” There is nothing “peculiar” or unusual for “aspirational
provisions to be interspersed randomly among the very concrete…
provisions.” Random interspersion is typical of our Constitution, as
illustrated by the placement of the right against self-incrimination in
an amendment that covers the rights of persons, rather than the rights
of the accused. It is also typical of constitutions in general, as
illustrated by [CITE OTHER CONSTITUTIONS, CANADA,
SOUTH AFRICA, and PROPOSED ISRAEL CONSTITUTION]
[See Charles Memo 4]
One obvious example in the Bill of Rights that undercuts
Scalia’s generalization that constitutional provisions were written “in
concrete and specific dispositions” designed to “nail down” rights as
they were understood at the time, is the provision against double
jeopardy that appears in the Fifth Amendment. These are its words,
“Nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb.” [emphasis added]
These twenty words have caused no end of interpretive litigation. The
two words “same offense” have divided judges bitterly over the years.
Is it the “same offense” if all the facts are the same, and the same
301 Antonin Scalia, A Matter of Interpretation (Princeton: Princeton
University Press, 1997), pp. 134-35.
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crime is prosecuted by the federal government and then by a state? Is
it the “same offense” if the facts are the same but the “elements” of
the crime are different? These questions have been answered by
looking at history—not always to the satisfaction of all historians.302
But what about the words “life or limb?” Must they be
interpreted literally? Now that several states have abolished capital
punishment and all states have abolished corporal punishment, can
any person ever be placed in jeopardy of his “life or limb” in these
jurisdictions? Does the double jeopardy clause not apply to
imprisonment? Can a person be subjected to a ten year prison
sentence and then tried again after he has served his term, since he
was never in jeopardy of life or limb? Or should the words be read
symbolically or metaphorically to apply to any form of punishment?
[HAS JUSTICE SCALIA WRITTEN OR SPOKEN TO THIS
ISSUE? CHECK] [Scalia has written about the phrase “of life and
limb” See Charles Memo 1]
The courts have been unanimous in interpreting these words
more inclusively, despite the fact that punishments other than those
jeopardizing lives and limbs were known to the framers who were
fully capable of “nailing” down the broader interpretation by using
the word “punishments” as they did in the Eighth Amendment.
Instead they chose a somewhat literary, even poetic, formulation to
express their views. A determined literalist would hold them to their
choice of words and interpret the double jeopardy provision as
narrowly protecting against only the death penalty, ear cropping and
the like. (Branding would present a close question.) Yet no court has
done this, and Justice Scalia has never explained why. [CHECK
THIS] Phrases like “equal protection under the laws,” “due process,”
“cruel and unusual punishments,” “the freedom of speech,” “secure in
their persons,” “speedy trial” and “be a witness against himself” are
also somewhat literary in their choice of words. They too could have
been “nailed down” by more technical formulations. Yet the framers
selected somewhat malleable, open-ended, vague and symbolic
language. What were furture generations expected to make of that
decision? What does the section of these words—as distinguished
from other available words that are far narrower and more technical-tell us about the original understanding of the Bill of Rights?
Professor Eben Moglen reminds us that the most basic right
sought by American colonialists was “a constitutional right to the
common law,”303 which suggests a dynamic rather than a static
302
[CITE]
Eben Moglen, “The Privilege and Common Law Criminal Procedure: The
Sixteenth to the Eighteenth Centuries,” in R.H. Helmholz, et al., The Privilege
303
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constitutional law. They understood, as those who came after them
understood, that it is a constitution, not a last will and testament, that
the courts would be expounding. As a wise man once put it: “If we
read the constitution like a last will and testament it will surely
become one.”304 They also understood that they were drafting an
enduring charter of government that would be difficult to amend. As
Alexander Hamilton wrote: “Constitutions should consist only of
general provisions; the reason is that they must necessarily be
permanent, and that they cannot calculate for the possible change of
things.”305 In the end our constitution did not consist only of general
provisions; it contained some of the rather narrow particularistic
provision cited by Scalia, but it also contained more general
provisions designed to assure the enduring nature of the document.
Henry Clay remarked on this shortly before the Civil War, “The
Constitution of the United Sates was made not merely for the
generation that then existed, but for posterity – unlimited, undefined,
endless, perpetual posterity.”306
Moreover, any enduring Constitution must balance between
security and liberty, and that balance may vary with the threats to
each. Justice Jackson once observed that “[t]here is danger that, if the
Court does not temper its doctrinaire logic with a little practical
wisdom, it will convert the constitutional Bill of Rights into a suicide
pact.”307 Justice Goldberg put it more simply: “While the
Constitution protects against invasions of individual rights, it is not a
suicide pact.”308 [PLEASE FIND A QUOTE ABOUT “LAST WILL
AND TESTAMENT]
Justice Scalia seems to acknowledge – indeed to welcome –
the “last will and testament” approach, proudly describing the
Constitution not as a “living document,’ but rather as a “dead” one all
of whose provisions have been “nail[ed] down” — an apt metaphor
for a dead constitution. He rejects Emily Dickinson’s living approach
to words:
Against Self-Incrimination: Its Origins and Developments (Chicago: The
University of Chicago Press, 1997), p. 129.
304
Professor Paul Freund expressed this idea aptly when he admonished the
American courts "not to read the provisions of the Constitution like a last will and
testament lest it become one". 11 D.L.R. (4th) 641, 649 (D.L.R. 1984) [CITE
ORGINAL]
305
Alexander Hamilton quoted in Jonathan Elliot, ed., The debates in the several
state conventions on the adoption of the federal Constitution. (Philadelphia, J.B.
Lippincott & co.; Washington, Taylor & Maury, 1836-59.), 2nd ed. p. 364.
306
Henry Clay Speech, U.S. Senate, 1850
307
Dissenting in Terminiello v. City of Chicago (1949).
308
For the Court, In Kennedy v. Mendoza-Martinez (1963).
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“A word is dead
When it is said,
Some say.
I say it just
Begins to live
That day.”309
Justice Scalia argues that if the Constitution, when read as a last will
and testament, would not serve the needs of modern America, then it
should be amended or scuttled, not stretched, accordion-like, to fit the
times. That, says Scalia, is the only democratic way.
This approach views the issue of constitutional interpretation
through the prism of modern democracy – certainly post-Jacksonian
democracy. This was not necessarily the prism through which the
framers understood the role of courts and judicial review. Many of the
framers distrusted democracy or “mobocracy” as some called it.310
They viewed the courts--comprised of learned men appointed for life-as a elitist check on the people. They wanted to constitutionalize the
common law, which would empower the courts to interpret
constitutional provisions without the need for repeated amendments
or constitutional conventions. As Alexander Hamilton put it in
Federalist no. 78,
“It is far more rational to suppose, that the courts were
designed to be an intermediate body between the people and
the legislature, in order, among other things, to keep the latter
within the limits assigned to their authority. The interpretation
of the laws is the proper and peculiar province of the
courts.”311
It is somewhat “peculiar” for Justice Scalia to argue that the mode of
interpretation most consistent with modern conceptions of democracy
is to seek the original understanding of framers who had a very
different conception of democracy. [ELABORATE AND EXPAND]
309
No. 1212[c. 1872]
“Your people, sir, is nothing but a great beast”—Alexander Hamilton [CITE].
“In all very numerous assemblies, of whatever character composed, passion never
fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates,
every Athenian assembly would still have been a mob.” James Madison, Federalist
Papers no. 55.
311
Alexander Hamilton, Federalist Papers no. 78.
310
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Our Accidental Constitution
The U.S. Constitution, and its accompanying Bill of Rights,
may have been intended for the ages, but it was written in its time and
for its time. That is inevitably the case with any document, regardless
of how future-looking and farsighted it may have been. The frame of
reference for our constitution was late eighteenth century, post
revolutionary America - - a nation with slavery, male domination,
Protestant sensibilities, and economic and other qualifications for
voting, jury service and office holding. Its frame of reference also
included a criminal justice system that was relatively primitive, even
by British standards. Trained lawyers were few and far between; the
police – as we know them - - were non-existent; professional
prosecutors were rare; judges were not well educated; prisons for
long-term confinement had not yet been constructed; alternative to the
death penalty were largely inefficient; the parchment rights of
criminal defendants were ignored in many cases.
It is quite remarkable that the constitution - - laden with
regional and other compromises, written hastily, filled with drafting
errors and sloppiness, combining time-bound, even anachronistic,
provisions with broad, asperational words - - has outlived all others,
and with so few amendments. Part of the reason for this longevity is
John Marshall’s foresighted decisions that empowered the Court to
engage in judicial review of a broad range of governmental actions. It
was no accident that these decisions included the phrase, “we must
never forget that it is a constitution we are expounding…, a
constitution intended to endure for ages to come, and consequently, to
be adapted to the various crises of human affairs.”312
McCulloch v. MD 4 Wheaton, 316, 407, 415 (1819). The idea of “judicial
review” and constant reinterpretation of old texts dates at least to the Talmudic
period as evidenced by the following apocryphal story from Baba Mezi’a: A legend
is told in the Talmud about an argument between a rabbi who believed in a “dead”
Bible and a group of rabbis who believed in “living” Bible. The focus of the
argument was an arcane law about an oven. To support his interpretation of the
law, Rabbi Eliezer implored, “If the halachah [the authoritative meaning of the law]
agrees with me, let it be proved by heaven!”—whereupon a heavenly voice cried
out to the others: “Why do ye dispute with R[abbi] Eliezer, seeing that…the
halachah agrees with him!” (Pretty authoritative evidence of the original intent!)
But another rabbi rose up and rebuked God for interfering in this very human
dispute. “Thou hast long since written the Torah” and “we pay no attention to a
Heavenly Voice.” The message was clear: God’s children were telling their father,
312
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The adaptability of many of the constitution’s most important
provisions, coupled with the difficulty of the amending process, has
resulted in the text of the constitution taking on different meanings
over the years. The constitution today is a very different document
than it was in 1793, in 1860, in 1900 and in 1950. Some of the
difference is attributable to external events and the amending process.
These include, most importantly, the Civil War, the post Civil War
Amendments, the massive immigration movements beginning at the
mid-nineteenth century and ending in the early part of the twentieth
century, then beginning again in the post World War II era, the
enfranchisement of women, the resurrection of the moribund Bill of
Rights during the twentieth century, the civil rights movement, the
reappointment decisions, the abortion and gay rights decisions.
However, Justice Scalia and some of his colleagues may feel about it
(and try to change it), the framers of our original constitution (even
the most farsighted among them) would hardly recognize the way it
has been “expounded” over the centuries.
Some of the reasons for its adaptability have been largely
accidental, a product of the law of unintended consequences. (In that
respect, it may be somewhat analogous to evolution.)
The privilege against self-incrimination is a perfect example
of accidental adaptability. At the time it was ratified, the Fifth
Amendment’s privilege against self-incrimination was, according to
Langbein and others, rarely invoked by criminal defendants at their
own trials. Its words could not have been understood to mean what
the defendant’s privilege means today: as precluding the prosecutor
from calling the defendant as a sworn witness, since even without the
privilege, the defendant was disqualified from testifying as a sworn
witness whether he wanted to or not. It is not entirely clear, therefore,
what the fifteen words were understood to mean in the context of the
eighteenth century “accused speaks” model of the criminal trial.
Although its words, literally read, apply only to a criminal defendant
not being compelled to be a witness against himself at his own trial,
as Donald Dripps has astutely observed: “To suggest that the privilege
cannot be claimed except by one at trial is to confine the privilege to
the only context in which it was unavailable at the founding.”313 The
same fifteen words now have a plain meaning that makes sense in the
context of our modern system of criminal justice in which, absent the
privilege, the defendant could be called as a witness by either side. It
“It is our job, as rabbis, to give meaning to the Torah that you gave us. You gave us
a document to interpret, and a methodology for interpreting it. Now leave us to do
our job.” God agreed, laughing with joy, “My [children] have defeated me in
argument.”
313
Dripps at 1625
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was probably not the plan of the framers to write words that would
eventually make sense in a system they did not contemplate - - though
a teleological argument could be made that by including the right to
counsel and the right to call witnesses in the Sixth Amendment, the
framers laid the foundation for a criminal justice system in which the
lawyer would speak for the defendant and the defendant, with the
advice of his lawyer, would decide whether to testify in his own
behalf. But this argument sounds like the kind of “just so” stories told
to explain why the leopard has spots or why the snake walks on its
belly.314
The reality is that it is largely an accident that the words of the
privilege fit comfortably into our current adversarial trial. (This is not
an argument for or against the privilege on its merits or demerits; it is
rather an argument as to its largely accidental relevance--for better or
worse--to the current system.)
Not all provisions have fared as well against the contingencies
of history. The Third Amendment’s prohibition against the quartering
of troops has become an anachronism in the modern age, and efforts
to interpret it as metaphor for the privacy of the home have fallen
largely on deaf ears.315 The Seventh Amendment’s financial criteria
for jury trial in civil cases at common law--$20--has trivialized that
right, since what was a considerable sum in 1793 is now less than the
filing fee.
It’s uncertain how other provisions will fare. For example the
Second Amendment may well have been understood by the framers
(or at least some of them) to be limited to “well regulated militias,”
but its words are open to a broader interpretation bestowing a
generalized individual “right to bear arms.” This has given rise to a
large and powerful political and ideological movement that can point
to the words of that amendment as its justification. This “right to bear
arms” movement has in turn given rise to a countermovement
favoring gun control that points to other words—such as “well
regulated” as its justification. That dispute has yet to be resolved
definitively by the Supreme Court.
[Expand with more examples of accidental constitution—
abortion, gay rights.]
314
Cite Gould
But see Griswold v. Connecticut, where the Supreme Court referred to the Third
Amendment as “another facet of that privacy”: “Various guarantees create zones of
privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers ‘in any house’ in time of peace without the
consent of the owner is another facet of that privacy.” Griswold v. Connecticut,
381 U.S. 479 (1965), at 484.
315
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A Functional Analysis of the Constitutional Right Against Selfincrimination
A functional analysis of a constitutional right should be
different from a pure policy evaluation of that right. A functional
analysis of a constitutional right done properly, is part and parcel of
an entirely legitimate mode of constitutional interpretation. It must be
rooted in the policies underlying the constitutional rule. It interprets
these policies by reference to what the framers (however defined)
understood to be the evils addressed by the constitutional provision
and not by reference to the values and policies of the current
interpreters.
A pure policy evaluation may be done without considering the
constitution, or by considering it as only one datum among others. In
the final chapter of this book, I shall attempt a pure policy analysis of
the right against self-incrimination, but in this chapter—which is part
of the material on the constitutional interpretation of the relevant
words of the 5th amendment--I shall attempt the kind of constitutional
functional analysis employed by Justices—ranging from Chief Justice
John Marshall to current Justice Antonin Scalia—throughout history.
To be sure, there is always the danger that a constitutional
functional analysis will serve merely as a cover for a pure policy
evaluation, allowing the interpreter to slip his own policy preferences
into the mix, but this risk is present with any mode of constitutional
analysis, as we have repeatedly seen with regard to textual and
historical interpretations. The temptation may be somewhat greater
with functional analyses, since policies play a more explicit role in
this mode of interpretation than in others, but a rigorous and
intellectually honest analysis can minimize this risk.
A functional analysis of a constitutional provision must
begin—as all modes of interpretation must—with the text and history
of the provision. [ELABORATE]
In a recent (June 15, 2006) opinion for the Court, Justice
Scalia purported to employ a functional analysis in deciding an
important constitutional issue.316 He employed this analysis in the
context of deciding whether a violation of the “knock and announce”
requirement of the Fourth Amendment warranted application of the
exclusionary rule. He (along with Justices Thomas, Kennedy,
Roberts and Alito) ruled that the exclusionary rule was not applicable
in situations where the police, with a search warrant, failed to satisfy
the knock and announce requirement. He acknowledged that this
“ancient” requirement had “its origins in our English legal heritage”
316
Hudson v. Michigan No. 04 -1360.
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and was “also a command of the Fourth Amendment.” But he then
listed a number of recent developments that proved, in his view, that
the cost of applying the exclusionary rule to such violations
outweighed their benefits.
Among those developments are the availability of a tort
remedy under 42 U.S.C §1983 - - a remedy that he said was
experiencing a “slow but steady expansion.” It was, of course,
precisely this remedy that the Court, with his approval, denied to
Oliverio Martrinez just three years earlier. Another change that he
pointed to is “the increasing professionalism of police forces…” He
did not cite as evidence of this supposed improvement the behavior of
Officer Ben Chavez--whose interrogation of Martinez was
characterized by Justice Stevens as the “functional equivalent [of]
torturous methods.”
Scalia concluded that the Court,
“cannot assume that exclusion in this context is necessary
deterrence simply because we found that it was necessary
deterrence in different contexts and long ago. That would be
forcing the public today to pay for the sins and inadequacies of
a legal regime that existed almost half a century ago.”
Yet he was prepared to conclude that exclusion is a sufficient
deterrence in the context of torture or other coercive mechanisms for
eliciting compelled self-incriminatory statements. The dynamic
approach to constitutional interpretation--things change, so
constitutional interpretation must keep up—employed by Scalia in the
Hudson case fits more comfortably into the “living constitution”
school that Scalia eschews than to the “dead constitution” school of
which he is the dean.317 It employs the kind of functional approach
317
Moreover Scalia is simply wrong when he says that the only function of the
exclusionary rule is to “deter” police misconduct and that, “the exclusionary rule
has never been applied except ‘where its deterrence benefits outweigh its
‘substantial social costs.’” By definition, an exclusionary rule cannot deter; it can
merely remove an incentive. Consider an example from the criminal law. Assume
that a bank thief is considering a heist that will net him $100,000. Assume further
that the only punishment, if he were to be caught, would be to return what he stole.
How could that punishment possibly deter a calculating criminal? If the odds on his
being caught were 80%, that would still net him $20,000 on each heist over time. In
order to deter a calculating actor, the punishment (discounted by the improbability
of being caught) must exceed the expected gain. The exclusionary rule provides no
punishment that exceeds the expected gain, especially for the calculating cop (as
distinguished from the bungling constable) who believes that he could not secure
the evidence by complying with the constitution. All the exclusionary rule can ever
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and cost-benefit analysis that he often condemns as more appropriate
to legislators than to judges.318 This approach looks at the broad
policy behind a constitutional rule and then seeks to apply that policy
to changing circumstances. Let us then consider how such a
functional approach, which is selectively employed by Supreme Court
Justices when it supports results they advocate and was not employed
in Martinez, might have informed the decision in that case.
do is to disincentivize the calculating cop, and it can do that only if cops are caught
nearly all the time - - which is not the case.
318
Often but not always. See Kylo [Describe Kylo] See also Craige.
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A Matter of Interpretation
How then should an honest Justice committed to non-ideological
interpretation of constitutional provisions set out to interpret a
provision, like the privilege against self-incrimination, when after a
thorough analysis, she comes to the following conclusions:
1. The text itself is subject to multiple, reasonable
interpretations, some of which appear too narrow to fit the precedents
while some appear too broad to fit them. The text alone does not
point unerringly to a single result.
2. The precedents are not directly on-point, but could sustain
multiple interpretations of the particular issue, none of which
precisely fits all of the precedents, and none of which seems more
consistent with them than others.
3. Analogies are incomplete, flawed, or cut in multiple
directions. No analogy to established law or practice leads inexorably
to one interpretation.
4. The original understanding of the clause leads to no
singular interpretation since it does not appear as if the framers
considered the particular issue precisely. Although there is language
among the framers which could support either interpretation, their
actual understanding appears inaccessible to history, at least to the
extent that it would clearly point in one direction. There does seem to
be some historical support for the conclusion that the framers
understood the privilege to prohibit judicial torture and judicial oaths,
though there is no definitive evidence of their understanding with
regard to remedies.
5. The historical research uncovers materials supportive of
multiple interpretations and do not precisely address the issue in its
current context. Because the current system of criminal justice, and
most particularly those parts of it that relate most directly to the
privilege against self-incrimination, is so different from the various
systems in operation at the founding, it is impossible to extrapolate
reliably from the history to the current situation.
6. More recent “understandings” of the right have varied with
the political climate of the times and most particularly with the
wrongs--such as McCarthyism on the one hand, and the freeing of
guilty defendants, on the other hand--that have been experienced.
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7. Functional considerations of constitutional policy cut both
ways depending on one’s political, ideological, and other preferences.
Considering the text at different levels of abstraction may provide
different answers, but there is no definitive guide to the proper level
of abstraction. Functional considerations also depend on an empirical
assessment of how different constitutional policies may impact on
such issues as the use of torture in terrorist prevention efforts, the
international law and treaty obligations of the United States, and other
contentious contemporary concerns.
8. Consideration of other modes of constitutional
interpretation that have been employed by courts and advocated by
scholars fail to produce a satisfactory singular result that is not merely
a cover for ideological and political preferences.
It is agreed that the framers did not incorporate in the
constitution a single proper mode or modes of interpreting its text.
Other constitution makers did precisely that. [DANZIG OTHERS]
Nor is there a single definitive and widely-accepted cannon of
interpretation that is mandated by precedent. In light of this state of
the law, a decision must be made by any interpreter as to which mode
or modes he will employ. Such a decision – and the theory on which
it is based – should be articulated and subject to accountability and
criticism.
There are several kinds of theories of interpretation. Some
purport to be deontological – that is morally compelled without regard
to consequences. Others are consequentialist – based on assumptions
about costs and benefits. Some have elements of both – containing
assumptions that depend to some degree on empirical assumptions.
The more consequentialist or utilitarian a theory of
interpretation is, the more it should contain testable propositions that
– at least in theory – are subject to validation and invalidation. They
should include nul hypotheses.
There are several techniques of invalidation that seem to have
widespread, if often implicit, acceptance. One of these techniques
purports to test any proposed theory of constitutional interpretation
against a handful of constitutionally given results. If the particular
theory of interpretation would not have led to these results without
doing violence to its methodology, it fails the test – or at least, it must
acknowledge that it is an imperfect theory of interpretation (even an
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imperfect theory can be accepted if it is less imperfect than the
others.) The primary testing result, under this technique, is Brown v.
Board of Education and its progeny. Under this test, it is taken as a
given (although this wasn’t always the case)319 that legally-mandated
segregation of public schools, parks, transportation, bathrooms, water
fountains and the like could not be deemed constitutional. Nor could
legally enforced anti-miscegenation laws. Any accepted theory of
constitutional interpretation must pass the test of demonstrating how
its mode of constitutional interpretation would have required the
striking down of such apartheid laws, despite the indisputable reality
that virtually all of the framers of the 14th amendment understood
“equal” to mean “separate” and “equal,” and that they did not
understand or intend that amendment to require the integration of
schools, parks, transportation, bathrooms and water fountains - and
certainly not sex and marriage. Some of the most creative (and
convoluted) intellectual (and sophistic) efforts have been undertaken
by scholars to square this circle.320
The two extreme positions are easy to defend. The first
acknowledges that there is no way of reconciling the text of the 14th
amendment, as the framers understood its words, with judicially
mandated interrogation. It concludes therefore that Brown and its
progeny were wrong as a matter of constitutional interpretation,
(though perhaps understandable – maybe even justifiable – as a matter
of pragmatic realpolitik.).321 Under this view, a constitutional
amendment or at least legislation, would be required to compel
integration. The fact that neither could possibly have succeeded –
especially with the malapportioned legislatures of 1954 – is not the
concern of these advocates of this restrictive view of interpretation.
Democracy requires the people to make these decisions, unless the
text of the Constitution, as understood by its framers, mandates a
different result. This is the position Justices Scalia and Thomas
should be taking on Brown and its progeny, but I am not aware they
have expressly done so.322
The other extreme view is the expanding or living
constitution. This view acknowledges that the framers themselves
understood equality to mean separation and that they explicitly
See Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” 73
Harvard Law Review 1 (1959), at 26-35.
320
CITE
321
CITE, SEE POSNER
322
Textual FN on Scalia’s and Thomas’ statements about Brown etc. CHECK
POSNER ON BROWN
319
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intended segregation – indeed that many of them would never have
voted for an amendment that they even suspected would one day
strike down anti-miscegenation statutes in which they strongly
believed as a matter of morality (misplaced as that may be). But it
concludes that history is largely irrelevant to the court’s current
interpretive job, unless the text of the constitution absolutely requires
the regressive result - - which it rarely does. That job is to keep the
constitution relevant to changing times, conditions, and attitudes. So
long as the words of the constitution will plausibly bear an
interpretation that will keep it relevant, that interpretation should
govern, regardless of the original understanding, intent or meaning of
the text. [EXPAND]
Another technique of invalidation is the one often cited by
Justice Scalia (and previously cited by Justice Black). It demands that
any proposed mode of interpretation deny justices the power to
impose their own personal, political, religious, or ideological views
on the decision-making process.323 The Supreme Court’s benighted
decision in Bush v. Gore demonstrates—if any demonstration was
necessary—that no methodology of judicial review will prevent a
determined justice from imposing his views.
The purpose of this section is to demonstrate that no one mode
of constitutional interpretation, and indeed no combination of such
modes, inexorably leads to “the right constitutional result” in many
situations of textual and historical ambiguity. It leaves open the
challenge of how a Justice or judge should make interpretive
decisions in this kind of situation. One thing seems perfectly clear to
me, though I know there is some dispute even with regard to it:
namely, judges owe an obligation of complete candor, honesty, and
openness in telling the public that there is no single right answer and
in informing them as to why, in light of the availability of multiple
answers, a particular one was chosen. Few Justices and judges are so
open about these ambiguities, uncertainties and choices. Most prefer
a “Wizard of Oz” approach, pretending that they are oracles whose
role it is to discover, rather than invent or construct (or, God forbid,
advocate), the “true,” “correct,” and “constitutionally mandated”
result. It is important, according to this view, for the general public to
believe that there is only one right result. If there are choices
available, these choices—according to this view—should be left to
democratic, as distinguished from judicial, processes. Nor can the
matter of interpretation be decided by reference to the preference for
democratic, over elitist judicial, resolutions. Even if one prefers
democratic resolutions to judicial ones, still the court must interpret
323
Cite SCALIA & quote him [Supreme Injustice p. 131]
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the relevant provision. Sometimes, one interpretation leaves more to
the democratic processes than another interpretation. In such
situations, it may be arguable that the interpretation that leaves open
democratic resolution should be the preferred one. It is not clear,
however, that this was the original understanding or intent of the
framers, many of whom distrusted democracy and saw the judiciary
as an elitist check on the people. Those who advocate democratic
resolutions of issues that could or could not be constitutionalized
often fail to mention the extremely undemocratic composition of the
original electorate (male, landowners, whites, etc.) and the limited
role the electorate played in electing the President, senators and other
policymakers. They view the dispute through the prism of modern
democracy, while purporting to view the understanding through the
prism of the framers.
In a case like Martinez, neither interpretation is more likely to
result in legislative or executive actions. The court must, as an initial
matter in a system of checks and balances, interpret the Constitution
as honestly and objectively as is possible, openly employing
acceptable canons of interpretation.
In the Martinez Case, Justice Thomas employed selective
textualism, selective use of precedent and questionable analogy to
interpret the privilege as not granting a stand alone right to remain
silent or to be free from police coercion. He eschewed all references
to history or original understanding, despite his frequent resort to such
interpretive tools in other cases. Had he honestly looked to history
and original understanding, he would have a far more difficult time
justifying the narrow interpretation he gave to the privilege, limiting it
to an exclusionary rule without regard to the nature of degree of the
coercion.
In the end, the decision in Martinez reflected pure policy
preferences by the justices, both those in the majority and those in the
minority. But those preferences went largely unexpressed. Not are
the justices—none of whom is experienced in an area of the law in
which the privilege plays an important role—particularly well
qualified to make policy choices regarding self-incrimination. These
choices, as we shall see in the next chapter, should be based on
complex factors, many of which are inaccessible to the justices.
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Policy Considerations
Deconstructing the privilege against self-incrimination
The policy arguments for and against the privilege against
self-incrimination fall into several distinct categories: constitutional
(previously discussed), civil liberties, moral and political. All of these
overlap, but also raise somewhat distinctive questions.
The privilege must also be deconstructed functionally. First
there is the supposed right to remain silent. This raises question of
what such a right would entail and whether it could ever be anything
more than symbolic. Second, what constraints should be placed on
governmental efforts to elicit information that may be selfincriminating but that may also be important in achieving goals other
than prosecuting the person being interrogated? Third there is the
question of remedies, namely, whether violations of the privilege
should be subject to injunction, criminal punishment, civil liability,
etc. Or whether the only remedy should be exclusion from a criminal
trial. Then there is the issue of immunity and its functional analogues.
Is derivative use immunity really coterminous with the privilege? Are
there valid analogies between immunity and improper means of
interrogation.
Underlying all these issues is the broad question of whether
the privilege, narrowly or broadly defined, can be justified, whether it
has become anachronistic, whether there is any historical basis for its
current scope, and whether there might be better ways to achieve the
goals of the privilege than by its current formulation and
interpretation.
I shall explore each of these issues in turn.
It has become a staple of academic literature to criticize the
privilege against self incrimination, to argue that it serves no
contemporary purpose and to call for its abolition or limitation.324 In
order to assess the current utility of the privilege, and balance it
against its obvious costs, it will be useful to imagine what a criminal
justice system would look like without the privilege. It would also be
useful to deconstruct the privilege into its several different
components and to assess each of them separately. In the end, it may
turn out that one or more of the components is more (or less) justified
than others.
324
CITE
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Let us begin therefore with the defendant’s privilege. That
privilege, which is directly mandated by the text of the Fifth
Amendment, prohibits the prosecution from calling the defendant as a
witness at his own criminal trial. When evaluated in the context of
the criminal justice system as it operated at the time of the framing,
the defendant’s privilege seems utterly redundant and unnecessary - at least if interpreted literally. Even absent the privilege, prosecutors
could not call defendants as a “witness” at their own criminal trials.
This is because criminal defendants were disqualified from testifying
under oath at their own trials, even if they chose to do so. The
defendant simply had the option of speaking in his own defense as an
unsworn advocate. Most defendants did not have lawyers and the
only person who could speak for them was themselves. If they chose
not to speak, they would be presumed guilty, especially since there
was no instruction advising the jury not to draw an inference of guilt
from the defendant’s silence.
Today the right not to be called as a witness by the
prosecution is an important right that profoundly impacts current
trials. It is accompanied by an instruction requiring the jury to draw
no inference from the defendant’s exercise of that right, and also by
an instruction placing a heavy burden of proof on the prosecution in
order to overcome the defendant’s presumption of innocence. All
defendants facing serious charges must be provided lawyers if they
cannot afford them. The vast majority of defendants today plead
guilty, but among the small percentage who go to trial most exercise
both their right to be represented by counsel and their right to remain
silent. The vast majority of the small minority of defendants who go
to trial are convicted, regardless of whether they chose to testify or
exercise their right to remain silent.
It may well be true [CHECK THIS] that defendants who
exercise their right to remain silent are more likely to be convicted
than defendants who exercise their right to testify on their own
behalves. But if this is true, it may be explained by the fact that
defendants without criminal records are more likely to take the
witness stand on their own behalf than defendants with a long
criminal records and that defendants with long criminal records are
more likely to be guilty than defendants with no records. It may also
be more likely that innocent defendants will be more willing to
undergo cross examination. It would be virtually impossible to
construct a double blind experiment isolating as the only variable the
decision of equally situated defendants to testify or not to testify. It is
certainly also possible that despite the jury instruction, many jurors do
take into account a defendant’s suspicious silence in evaluating guilt
or innocence.
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It is far from clear therefore whether the defendant’s privilege
has any real impact on the accuracy of criminal trial verdicts. It is
clear however that it reduces the amount of perjury at criminal trials.
A silent defendant is a non perjuring defendant. A testifying
defendant, if he is guilty, is likely to be a perjuring defendant. (Even
if he is innocent, it is possible that he may perjure himself). I have
written elsewhere about the irony that so much judicial and academic
concern has been expressed about perjury committed by defendants - and about the dilemma a defense lawyer faces when he suspects or
knows that his client intends to testify falsely - - when the reality is
that far more perjury is today committed by prosecution witnesses
than by defense witnesses (and even more by civil litigants). This is
not because defendants or their witnesses are more honest than
prosecutorial witnesses (or civil litigants). The opposite is probably
true as a general matter. The sole reason is that prosecutors must put
on witnesses, including “testalying” police officers, “bought”,
“rented” and “flipped” witnesses and other sorted associates of the
defendant, (all civil litigants must testify and many commit perjury).
Whereas the defense need not put on any witnesses and in many trials
limit themselves to cross-examining government witnesses. This
would all change if the defendant were required to testify.
The dynamics of the trial would change in other ways as well.
In some cases the prosecutor would call the defendant as a hostile
witness expecting him to commit perjury. In other cases the defense
would call the defendant, fearful that failure to do so would create a
presumption of guilt. If the defense attorney called the defendant as a
witness, he would have to vouch for his truthfulness: he could not call
him if he knew that he would be testifying falsely. If the defense
attorney did not call the defendant to the stand it would be a red flag
signifying that the lawyer knew that his client would commit perjury.
This would entirely change the dynamic of the lawyer/client privilege,
discouraging (even more than today) the defendant from disclosing
his guilt to his attorney.
The defendant’s privilege, on balance, does less harm than
would its abolition. It “ain’t broke”, and there is no good reason to
“fix” it by constitutional amendment. Although it serves quite
different purposes than it did at the time of its inclusion in the Bill of
Rights, it fits comfortably into our current system of criminal justice.
Its abrogation would violate the law of unintended consequences. It
would also tamper with an important balancing mechanism in our
adversary system.
The second component of the privilege that warrants
reconsideration is the witness’s privilege. It permits a sworn witness
in any legal proceeding to refuse to answer specific questions on the
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ground that a truthful answer might tend to incriminate him. The
witness’s privilege does not derive directly from the text of the Fifth
Amendment. Nor does it flow inexcerbibly from the language or
policies of the defendant’s privilege. It must stand or fall on its own
merits and on its historical lineage.
Unlike the defendant’s privilege, which is absolute and has no
mechanism for circumvention, the witness’s privilege is easily
overcome by a grant of derivative use immunity, which is supposed to
put the witness in precisely the same situation he would have been in
had he invoked the privilege. When immunity is granted the
government loses no information. Nor does it, at least in theory,
diminish its prospects for securing a criminal conviction. It may use
any evidence independently discovered and not derived from
information obtained from the defendant after he has been granted
immunity.
In reality neither the government nor the defendant are really
in the same position. The government must satisfy a heavy burden of
demonstrating independent source, and the defendant has been
compelled to reveal embarrassing, damaging, and even bankrupting
information. But the policies of the privilege have been served. This
still leaves open the question whether the policies of the witness’s
privilege are worth their costs, even if the costs are relatively
minimal.
There is one context in which it can be clearly demonstrated
that the cost of the witness’s privilege exceeds its benefits: when the
defendant in a criminal case seeks exculpatory evidence from an
alleged accomplice who is cooperating with the government. In such
cases the government almost never grants immunity, even if it has no
intention of prosecuting the witness. It refuses immunity purely on
self serving tactical grounds: namely that the witness’s testimony will
benefit the defendant. Moreover, it often encourages the witness to
invoke his privilege—and because it has extraordinary leverage over
cooperating witnesses, its “encouragement” translates into
compulsion. Although some courts have said that in extreme cases
the Sixth Amendment may require the government to grant “defense
immunity” to an exculpatory defense witness, these extreme cases are
rarely if ever found by the courts.325 It is surprising that the specific
language of the Sixth Amendment - - “in all criminal prosecutions,
the accused shall enjoy the right…to have compulsory process for
obtaining witnesses in his favor” - - does not always trump the
witness’s privilege, which is not mandated by the text of the Fifth
Amendment. Since derivative use immunity is supposed to put both
325
??
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sides in the position they would have been in had the witness’s
privilege been exercised, it seems difficult to justify the government’s
refusal to grant this immunity in cases where the defendant can make
a plausible showing of need for the testimony of an accomplice or any
other witness who plans to invoke the witness’s privilege. I have seen
this process improperly manipulated by prosecutors who have no
intention of ever prosecuting the witness but who simply refuse to
grant derivative use immunity in order to block the defendant from
securing exculpatory testimony. This is one context in which the
current case law on the privilege against self incrimination should be
modified in the interests of fairness and of the Sixth Amendment.
Some courts have argued that they are not empowered to
grand immunity, because that decision must be made by the executive
branch, and for a court to preclude prosecution would violate the
separation of power. This argument might have some force if
transactional immunity were required, but all that is required is
derivative use immunity, and such immunity - - at least in theory - places the prosecution in the same position it would have been in
without immunity.
Now that states, cities, interstate agencies and other units of
government can impose derivative use immunity on federal
prosecutors, why cannot a federal judge - - in the interest of protecting
a defendant’s Sixth Amendment rights - - impose that same kind of
immunity on federal prosecutors? The separation of powers argument
cannot trump a defendant’s valid claim, any more than a federalism
argument can. Accordingly, whenever a criminal defendant can make
a plausible showing that his defense would benefit from the testimony
of a witness who is claiming the Fifth Amendment, the judge should
compel the witness to provide that testimony. This would leave
federal prosecutors in precisely the same situation - - at least in theory
- - they would be in if the witness were allowed to plead the fifth.
Hence the argument falls by its own weight. Put another way, the
government which has long argued that derivative use immunity
places both parties in the same position should not be heard to argue
that it is disadvantaged by a grant of defense immunity.
Moreover, the force of this defense immunity argument has
been considerably strengthened by the Court’s analysis of the
privilege in the Martinez case. If a witness has no right to remain
silent - - only a right to exclude compelled self-incriminating
statements and their fruits - - and if the point of impact of the right is
the criminal trial of the witness who has been compelled or coerced to
make a self-incriminating statement, then it would seem to follow that
a potentially favorable witness at another person’s criminal trial has
no right to refuse to testify. His only right is a future, contingent right
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to exclude self-incriminating statements and their fruits from his own
criminal trial, if he were ever to be prosecuted. And that right is
preserved with derivative use immunity. Even if the witness has
some conditional right not to testify, that right should certainly be
subordinate to the defendant’s unconditional Sixth Amendment right
to obtain witness in his defense.
The third component to the privilege and perhaps its most
controversial is what I call the “suspects privilege” and what history
calls the “confession rule.” This component has the weakest claim to
constitutional status under the text and perhaps under the original
understanding of the Fifth Amendment. It presupposes physical,
psychological or other forms of police coercion being employed
against a suspect in a station house, the police car or the street. When
the Fifth Amendment was enacted, however, there were no police (at
least as we now know them) and no informal interrogation of the kind
made famous by such shows as NYPD Blue in which officer
Sipowicz browbeats guilty suspects into admitting their horrible
crimes. There was of course a long history of torture, but it was
judicial torture, authorized and supervised by the courts. Despite the
absence of historical records, I am certain that there must have been
informal torture as well done outside of the legal system. Indeed one
early commentator referred to torture as a matter of “State” rather
than as a matter of law. But the contemporary context that has
generated the rules governing the suspect’s privilege--most especially
the Miranda Rule--was unknown to the framers. It is not surprising
therefore that at least one early 20th Century Supreme Court decision
said that the entire issue of police coercion and torture does not come
under the rubric of the privilege of self incrimination but rather under
the rubric of due process.
In evaluating the policies underlying the suspect’s privilege,
consider the following “thought experiments.” First, imagine the
following “reform” to our criminal justice system. All police
interrogation of suspects is banned on the ground that such
interrogation is inherently coercive and unfair. The fruits of any
police interrogation are excluded from evidence. Instead, all suspects
(against whom a certain threshold of incriminating evidence has been
reached) are required to go before a judge with his lawyer present. If
he cannot afford a lawyer one is appointed. The entire proceeding is
videotaped. The judge wearing a robe, asks the suspect in a low and
respectful voice, to respond to a series of relevant, fairly framed
questions, based on the available evidence. For example: “Sir, it has
been alleged that on such and such a day in such and such a place you
killed so and so. Witnesses such and such claim to have observed the
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killing. Are they telling the truth? Did you kill the alleged victim? If
so why?” etc.
The lawyer is permitted to object to the form of the question,
to its relevance etc. He is also permitted to confer with his client after
each question is asked. The suspect is required to answer the
questions truthfully. If he refuses to answer he can be held in
contempt and imprisoned until he answers, and his refusal can be
made known to the jury. If he answers falsely, he can be prosecuted
for perjury. The resulting video will be shown to the jury if there is a
criminal trial.
This heuristic is, of course, functionally similar in some
respects to the current process of questioning a witness after he has
received immunity — with one important difference: the suspect in
the thought experiment doesn’t get the benefits of immunity. His
answers (and their fruits) can be used against him if he is prosecuted.
Putting aside the constitutional privilege against self
incrimination, what would be the policy arguments for and against
such a process? In what ways would it change our current system - for better or worse? Would it increase or decrease the overall
accuracy of the criminal process? Would it increase or decrease the
number of false negatives — i.e. guilty people who are currently not
convicted? Would it increase or decrease the number of false
positives — i.e. not guilty people who are currently convicted?
Would it increase or decrease perjury? Would it change the nature of
investigations? What other values would it impact?
Now, consider the following variation on the above “thought
experiment.” Instead of requiring the suspect to answer judicially
posed questions, imagine a system in which a so called “truth serum”
is perfected to the point where it is 100% accurate and totally
harmless and painless.326 What would be the policy considerations in
favor of and against the use of such a serum and the admissibility of
its fruits?
There are, of course, considerable differences between
compelling a suspect to answer questions by threatening him with
contempt, and forcing him to accept truth serum. In the former
situation he retains the ability to exercise some choice, even though it
is choice with consequences. Even the proverbial “offer that can’t be
326
This hypothetical was suggested by my colleague Charles Fried.
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refused” can be refused, as evidenced by the brave people throughout
history who chose torture and death over collaboration and
confession. Responding to questions under the influence of truth
serum denies all choice. The bravest or most stubborn of suspects
cannot refuse to answer, if the serum really works. In this respect, it
is more than truth serum, it is compulsion serum. Imagine for
heuristic purposes, another serum that does not compel the suspect to
answer, but if he chooses to answer denies him the option of lying.
That would be truth serum or more precisely an anti-lying serum.
If the unfairness and coercion inherent in most police
interrogations were truly to be eliminated — along with the threat of
physical abuse, torture, bribery and lies — what policy arguments
would remain against compelling truthful answers to incriminating
questions?
Recall that today police are allowed to employ trickery,
outright lies, threats of certain kinds, promises and other forms of
deception and psychological manipulation, in order to get suspects
first to waive their illusory right to counsel — counsel is never
actually provided but the interrogation is terminated if counsel is
requested — and then to admit their crimes. In practice, the
interrogation room is often imbued with an atmosphere of violence
and physical coercion. (Remember Sipowicz!) None of this would
be permitted in the judicial model (lawfully compelled truthful
answers to incriminating questions) or in the scientific model (truth
serum).
By isolating the right to remain silent from the abuses of
police interrogation, these heuristics force us to think about whether
there should be a stand-alone right to remain silent, or merely a right
not to be physically or psychologically coerced into making selfincriminating statements. The nature of the right also bears on the
nature of the remedy or remedies for its violation. They also force us
to think about why today the police remain so free to employ such
questionable means of inducing waivers and confessions in the
stationhouse and on the street, while judges remain so constrained in
eliciting waivers and confessions in the courtroom.
Some of these differences may grow out of the divergent
histories of the three privileges and particularly the emphasis placed
on the judicial oath by the originators of the privilege. Recall that at
the time of the ratification of the Fifth Amendment, there were no
police and hence no stationhouse interrogations. The abuses of that
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age were judicial abuses committed by magistrates and justices of the
peace. The primary abuses were interrogation under oath and — to
use Jefferson’s phrase — “judicial torture.” Today’s abuses are
committed largely by police, F.B.I. agents and military interrogators.
Tomorrow’s abuses may be committed by scientists and other experts
at eliciting preventive intelligence. The challenge is to devise
processes that strike appropriate balances between the legitimate
needs of government for different types of information and the
legitimate policies underlying the privilege (or privileges) against
self-incrimination. The Fifth Amendment imposes constraints on what
we may do but not on how we may think, and how we think about
these issues has some influence on how the courts interpret the
Delphic words of the privilege against self-incrimination.
An Anti-disestablishmentarian Defense of the 5th Amendment
When I was a kid, we were taught that the longest word in the
English language was “antidisestablishmentarianism,” but we were
never told what it meant. Curiosity led me to look it up and discover
that it referred to a group of British political figures who might not
have favored—as an original matter—the establishment of the
Anglican church as the official (established) religion of England, but
who were opposed—as a matter of then current policy—to the
disestablishment of that church. It was a subtle, but important
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distinction: being against or uncertain about whether an action should
have been taken years earlier, but now being against undoing that
action years later. Jefferson, who strongly favored disestablishing the
Anglican church in Virginia, took a “disestablishmentarian” position
with regard to slavery: he wished that the institution of slavery had
never been introduced to the American colonies and he opposed its
adoption anywhere else or its spread to new areas, but he also
opposed its immediate abolition in places where slavery had become
part of accepted folkways, fearing that freeing the slaves and allowing
them to live side by side with whites would result in a race war, with
better-armed and better-trained whites slaughtering the former slaves,
but with many white deaths as well.327
Though the issues of religion and slavery are not analogous to
the 5 Amendment, I am making an antidisestablishmentarian case
for the preservation of the right against self-incrimination in the
United States in the 21st century. Reasonable people might well have
been opposed to, or uncertain about, the adoption of the right against
self-incrimination as an original matter back in 1793. They could
plausibly have argued that we would have been better off adopting an
approach to criminal justice that did not accord criminal defendants,
witnesses or suspects the right to refuse to acknowledge their guilt or
to provide the government with testimonial evidence that might form
a link in the chain of self-incrimination. But the framers believed
differently, and for whatever reasons—historical, moral, religious,
empirical—they established a system of criminal justice that required
the prosecution to prove the defendant’s guilt without requiring him
to acknowledge it.328 This system, as it developed over time, placed a
heavy burden of proof---beyond a reasonable doubt—on the
prosecution. It also adopted other rules, practices and approaches that
became part of what we call the adversarial system of criminal justice
and that grew out of, or were related to, the right against selfincrimination. These rules, practices and approaches have not been
adopted by nations that have rejected the right against selfincrimination, including nations that have eminently fair systems of
criminal justice. Some of these differences flow inexorably from the
th
He pointed to the ‘deep prejudices entertained by whites’ and the ‘ten thousand
recollections by the blacks of injuries sustained,’ as well as ‘new provocations,’ and
‘the real distinctions which Nature has made.’ He feared ‘convulsions which will
probably never end but in the extermination of one or the other race.’ Alan M.
Dershowitz, American Declares Independence (Wiley 2003), pp 125.
328
Another alternative would have been to establish this Adversarial System for the
federal government, but to leave its various states the option of establishing—or
experimenting with—other systems [ELABORATE]
327
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right against self-incrimination itself: for example the rule prohibiting
the prosecution of judges from commenting on, or the jury from
inferring guilt from, the defendant’s decision not to testify. Others of
these differences are less directly related to the right against selfincrimination, but are part of the adversarial system to which the right
is central. These include the presumption of innocence, the heavy
burden of proof on the prosecution and the right to pro-active counsel
at a relatively early stage in the criminal process.329 They also include
the criminalization and prosecution of false exculpatory statements
made by defendants and suspects in this country—a practice alien to
most systems that do not have a right against self-incrimination. In
other words, in the U.S. a defendant or suspect has the right to remain
silent in response to questions that seek incriminating answers, but if
he elects to speak, he must speak truthfully at the risk of criminal
prosecution. In most continental countries, the defendant or suspect
has no right to refuse to answer incriminating questions, but if he
answers them falsely, he does not expose himself to criminal
prosecution.330
It is this important difference that gives rise to the “cruel
trilemma” faced by a defendant or suspect whose truthful answers
might tend to incriminate him: if he refuses to answer he an be
imprisoned for contempt of court; if he answers truthfully, he can be
convicted of the substantive crime; and if he answers falsely, he can
be prosecuted and convicted of perjury.
The third horn of this trilemma has been eliminated from—or
more precisely never added to—most systems that lack the right
against self-incrimination. Accordingly, if we were now to eliminate
the right against self-incrimination, we would not be adopting the
continental system. We could instead be adopting a hybrid system
that would be much more onerous to the defendant or suspect than
either the current U.S. or continental system. We would also be
adopting a system in which perjury (and related) prosecutions would
play a much larger role than they currently do in either the American
or continental system. As a condition to pleading not guilty—to
putting the prosecution to its proof—a defendant would have to risk a
perjury prosecution (with an extended statute of limitations). This
329
Criminal lawyers in the U.S. (at least good ones) behave involved in a pro-active
way at a far earlier point than their continental counterparts. Indeed what American
lawyers routinely do—and are often required to do by ethical rules and guidelines—
would constitute an obstruction of justice in some European countries. [expand and
cite]
330
[PLEASE DOCUMENT THIS]
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would be true not only of guilty defendants, but of any defendant—
whether innocent or guilty, or somewhere in between—who might
possibly be convicted. It would also apply to defendants who were
acquitted, but against whom the prosecution could subsequently bring
a perjury prosecution based on new evidence or simply a belief that a
second (or third, or fourth) jury might be less favorable to its
defendant.
This new hybrid system—under which the price of pleading
not guilty would be risking a perjury prosecution—would thus
undercut the double jeopardy protection of the constitution, would
extend statutes of limitations, and would dramatically increase the
amount of perjury in the American criminal justice system. Today,
criminal defendants rarely commit perjury, for the very simple reason
that they rarely testify on their own behalf at their criminal trials.
Experienced lawyers believe—and I am among them—that far more
perjury is committed by litigants in civil trials and by prosecution
witnesses at criminal trials than by criminal defendants. This is so not
because criminal defendants are more honest or honorable than civil
litigants or prosecution witnesses—the opposite is almost certainly
the case. It is so only because criminal defendants, and not civil
litigants or prosecution witnesses, have a right not to testify, a right
that most of them assert.331 If that right were eliminated perjury by
criminal defendants would become pervasive throughout the criminal
justice system.
This change would dramatically affect the role of the criminal
defense lawyer, who is ethically and legally prohibited from
knowingly allowing his client to testify falsely. Today an ethical
criminal defense lawyer can generally—though not always—convince
his client to assert his right against self-incrimination and thus avoid
the ethical (and legal) dilemma of suborning perjury by knowingly
eliciting false testimony from his client.332
In summary, therefore, disestablishing the right against selfincrimination, after more than two centuries of development and
elaboration, could have cataclysmic consequences--some intended or
others unintended—on our complex, ongoing and uniquely American
system of criminal justice. Whenever one important moving part is
taken out of an interactive mechanism, it will affect other parts of that
331
See Dershowitz, Hofstra Law Review
FN about ethical dilemma of persuading a client who could testify falsely but
convincingly.
332
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mechanism. The question, therefore, is not whether as a matter of
first principles the continental system is better than ours. The
question is whether it would now be better to eliminate a central right
upon which so much of our current system has long been built.333
333
FN on adopting the continental system whole hog—including eliminating
perjury prosecutions.
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Broader Trends
The Supreme Court’s rejection of the fundamental right of all
persons to remain silent, or not to be coerced, in favor of a narrow
trial right of only criminal defendants to exclude compelled testimony
from their criminal trials is part of several larger trends. The first is a
general narrowing of apparently human rights to trial rights: the
presumption of innocence is now fairly established as merely an
evidentiary trial right, rather than a pervasive presumption that cloaks
all citizens in their relationship to government. [DESCRIBE BAIL
DETENTION AND ITS IMPLICATIONS FOR A BROADER
PREVENTIVE DETENTION]. The “cruel and unusual punishment”
clause is now limited to post-conviction sanctions. The “due process”
clause is seen by some as merely a procedural protection applicable
primarily in the context of trials and other legal proceedings, rather
than a substantive limitation on government actions.
Another, related, trend is to limit rights – even among criminal
defendants – to the truly innocent, or at least to the arguably innocent.
The broadening of the harmless error rule, the narrowing of habeas
corpus, the limitation of reasonable expectation of privacy in the
context of the 4th amendment, and the return to Wigmore’s narrow
concept of the privilege all reflect this trend. This trend raises even
broader issues regarding the increasing marginalization of the
Constitution with regard to policy debates, academic discourse and
legislative resolutions of important issues of criminal procedure.
Over the past half century the Constitution has dominated
consideration of these issues. The arguments tended to be about the
constitutionality of governmental actions, rather than about their
desirability. Because courts played such an active role in striking the
balance between security and liberty, other institutions tended to
abdicate their responsibility as policy makers. Legislators and
executives rarely considered the constitutionality of their actions: “If
what we’re doing is unconstitutional, the courts will stop us,” has
become a common mantra.334 If an action was found
unconstitutional, that ended the debate, because it left no option other
than the unrealistic one of constitutional amendment. But if an action
was found to be constitutional, that too tended to end the debate. The
operative assumption seemed to be that if it was constitutional, it must
be desirable. The narrowing of the constitutional rights by the Courts
makes it increasingly important for other institutions to broaden the
debate over policies. [EXPAND AND EXPLAIN]
334
Goldberg & Dershowitz, Harvard Law School
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……………………….END………………………