Rethinking the Fifth Amendment (Again)

When Timothy McVeigh was charged in April with the Oklahoma City bombing, something very revealing happened. McVeigh said nothing. He did not say, "I had nothing to do with it." He did not say, "You’ve got the wrong guy." In fact, he has never, to this date, said anything like that.

McVeigh’s nondenial is highly probative-indeed, it is what most convinces me of his probable guilt. But the jury at his trial will never be told about it.

Why not?

And if McVeigh fails to take the stand at trial to assert his innocence or explain where he was and what he was doing at the time of the murders with which he is charged, the prosecutor will be barred from commenting on his silence, and the jury will be instructed that no inference of guilt can be drawn.

Why not?

The answer, of course, is the Fifth Amendment provision that "[n]o person … shall be compelled in any criminal case to be a witness against himself," as it has been construed by the Supreme Court.

The constitutional language clearly gives every criminal defendant the right to remain silent at trial. The Warren Court and its predecessors, going back to 1886, extended the privilege to (among other things) pretrial proceedings and police station interrogations; stretched the meaning of the word "compelled" in the Fifth Amendment to require the familiar Miranda warnings and to bar prosecutors from making reference either to a defendant’s silence after arrest or to his or her failure to testify at trial; and mandated exclusion from evidence both of "compelled" pretrial statements and of any physical or other evidence (such as the location of a murder weapon or the names of witnesses) derived from such statements.

The deeper question, debated for more than a century, but never laid to rest, is whether all this makes much sense, or whether the Fifth Amendment privilege- at least as stretched by the Court-serves primarily to shield guilty defendants, with social costs that far outweigh any benefits.

The breadth of the Fifth Amendment’s shield for the guilty has long baffled many ordinary citizens and has troubled an especially illustrious list of scholars and judges. Among the many luminaries who have criticized either the privilege itself, or the Court’s gloss on it, as a kind of misbegotten growth on an otherwise sound Bill of Rights, have been English philosopher Jeremy Bentham. Legal scholar John Henry Wigmore, Harvard Law School Dean Roscoe Pound, and Judge Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit, who wrote in 1968 that the Court "has stretched the privilege not only beyond its language and history but any justification in policy."


Now comes Professor Akhil Amar of Yale Law School in an impressive 72-page article (co-written by Reneé Lettow, a student), entitled "Fifth Amendment First Principles: The Self-Incrimination Clause," in the just-published March issue of the Michigan Law Review.

Amar makes a provocative, well-crafted argument for a dramatic reinterpretation of the privilege that would (among other things) allow police or prosecutors to interrogate arrested suspects, in judicially supervised pretrial depositions, on pain of contempt for refusing to answer and of perjury for failing to tell the truth.

While the government could not use the defendant’s testimony against him at trial-which would flout the clear original intent of the Fifth Amendment-it could use any physical evidence, names of witnesses, or other leads or reliable evidence derived from such interrogations.

Amar grounds his proposals in a conception of the privilege as evincing a core purpose of protecting innocent defendants from being convicted based on a species of unreliable evidence: testimony compelled from an unpracticed defendant-witness who can be manipulated by a clever prosecutor into looking like a guilty liar to the jury. In Amar’s view, the privilege should protect the guilty only as a necessary incident of the need to protect the innocent defendant from being compelled literally "to be a witness against himself at trial.

If reliability is the touchstone, Amar reasons, the privilege is offended neither by the compulsion of incriminating testimony before trial (so long as it is not introduced at trial) nor by the use at trial of any reliable evidence (such as the location of a murder weapon) that may be derived from the compelled testimony.

Amar has already drawn a ripsnorting, 81-page rebuttal (in the same issue of the law review) from Professor Yale Kamisar of the University of Michigan Law School, long a leading scholarly advocate of using broad Fifth Amendment rules to deter abusive police interrogations. Kamisar is persuasive (and exhaustive) in arguing that Amar’s proposals would amount to a far more radical demolition of more than a century of Supreme Court precedent than Amar acknowledges. Kamisar also warns plausibly that Amar’s approach could encourage third-degree interrogation techniques by allowing police to use even evidence derived from confessions coerced behind closed doors without judicial supervision.

Still, Amar (like Judge Friendly and others) makes a compelling case that Fifth Amendment doctrine is bloated with unwarranted extensions and riddled with internal inconsistencies and incongruities. He (like they) also torpedoes the flaccid policy rationales-"ringing but vacuous pronouncement[s]" and "cacophonous clichés," in Friendly’s words-that have been offered by the Supreme Court and others over the years for a privilege that so generously shields the guilty, not only from police misconduct but also from being put to the slightest disadvantage for refusing to respond even to the most civilized and carefully monitored kinds of pretrial questioning.

Take the Warren Court’s assertion in Murphy v. Waterfront Commission (1964) that the privilege reflects "our unwillingness to subject those suspected of a crime to the cruel trilemma of self-accusation, perjury, or contempt."

But there is no "cruel trilemma" for the innocent. They can simply tell the truth. As Mickey Kaus (now of The New Republic) has written, the Court was in effect saying that it would be too cruel for "a guilty man asked to testify [to be] placed between a rock and a hard place. So he is. But isn’t that exactly where we want him? … Why should the Constitution reach down and extricate him from the trap he has gotten himself into?"

The Court’s further rationale in Murphy that an expansive Fifth Amendment privilege is warranted by "our preference for an accusatorial rather than an inquisitorial system of criminal justice." in which prosecutors and police must prove their cases without forcing defendants to assist in their own convictions, smacks of the "sporting theory" of justice as a game played for its own sake, rather than a truth-seeking process. It is also belied by the broad powers of prosecutors to compel defendants to provide such physical evidence as their fingerprints, voice prints, and blood.

Justices and commentators have also argued that an underlying purpose of the privilege is to protect the "private enclave" of each individual. Bui this" argument cannot be reconciled with the established doctrines that testimony about intensely private matters can be compelled by the government from witnesses who have done nothing wrong or who have been granted immunity, and by civil litigants in (for example) divorce cases.

Then there is the notion that we need a broad Fifth Amendment privilege as a shield for dissidents. The privilege still inspires affection among many liberals because of its undoubted value in shielding alleged Communists and others accused of ideological heresy by red-hunting congressional committees during the other witch McCarthy era, and during other witch hunts going back to the Star Chamber. But notwithstanding this pedigree, the best protection against witch hunts in today’s world lies in the First Amendment, rather than in a bloated privilege that serves primarily to shield violent criminals and white collar crooks.

The most compelling argument for such Warren Court expansions of the privilege as Miranda v. Arizona (1966) is the need to deter police from using brutality or abusive "third-degree" interrogations to obtain coerced confessions-which are inherently unreliable in themselves and are often embroidered in police reports and testimony.

But while some advocates of expansive Fifth Amendment rules tend to equate all forms of questioning with cops using rubber hoses, Amar points out that in fact, "[b]y effectively preventing formal, civilized depositions-by creating an overly…