Copyright (c) 1995 Michigan Law Review
Michigan Law Review
ARTICLE: FIFTH AMENDMENT FIRST PRINCIPLES: THE SELF-INCRIMINATION CLAUSE
93 Mich. L. Rev. 857
Akhil Reed Amar * and Renee B. Lettow **
No person ... shall be compelled in any criminal case to be a witness against himself ... 1
The Self-Incrimination Clause of the Fifth Amendment is an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights. From the beginning it lacked an easily identifiable rationale; in 1789, the words of the clause were more a slogan than a clearly defined legal rule, and in the preceding four centuries the slogan had stood for at least four different ideas. 2 Today, things are no better: the clause continues to confound and confuse. Because courts and commentators have been unable to deduce what the privilege is for, they have failed to define its scope in the most logical and sensible way. In this article we try our hand at solving the riddle and untying the Gordian knot. We propose both a rationale for, and a definition of the proper scope of, the Self-Incrimination Clause.
The Supreme Court's interpretation of the Fifth Amendment is currently in a jumbled transitional phase. The key question, though rarely recognized as such, is what sort of immunity the clause requires before a person may be made to tell all outside his own "criminal case," beyond the earshot of the petit jury. Over the years the answers have varied considerably. In its 1892 chestnut Counselman v. Hitchcock, 3 the Supreme Court required total ("transactional") immunity from prosecution whenever a person is compelled to testify against himself outside the ...
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