Right Against Self-Incrimination (Update)

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In the original edition of this Encyclopedia, Leonard W. Levy characterized the right against self-incrimination as "the most misunderstood, unrespected, and controversial of all constitutional rights," yet stressed that the Supreme Court "has tended to give it an ever widening meaning" unconfined by textual literalism. Recent Fifth Amendment jurisprudence has brought an end to this expansion of scope without clarifying the theoretical underpinnings of the right. While scholars propose and criticize alternative conceptual foundations for this right, the Supreme Court has been content to point to a grab bag of motivations, including humaneness to suspects, commitment to "accusatorial" procedures and a fair state-individual balance, distrust of confessions, concern for privacy, and respect for the human personality. The Court has made little effort to assign different weights or distinct roles to these concerns or to link them explicitly to the outcomes of particular cases. Current law indeed suggests that the Court's primary aim is to prevent the right against self-incrimination from interfering unduly with the paramount truth-finding function of the criminal justice system.

Achieving this aim is particularly difficult because the Fifth Amendment, unlike the fourth amendment, does not prohibit only "unreasonable" intrusions on the right that it protects; thus, the Court is at least officially reluctant to "balance" the Fifth Amendment right against competing government interests. Moreover, the Fifth Amendment appears on its face to forbid admission of evidence compelled from the defendant, leaving no room to argue—as with the Fourth Amendment—that exclusion of improperly obtained evidence is a judicially created remedy to which courts may freely create exceptions. The Fifth Amendment right must instead be limited by the manner in which it is defined and by the explanations given to the key terms in that definition.

The right against self-incrimination forbids the government to compel an individual to provide testimonial or communicative evidence that could be used to incriminate that individual. Only a natural person, not an organization, can claim this right, but with regard to items a person holds as custodian for an organization. However, it may be claimed in any forum in which government seeks to compel a response, whether by legal process or through the informal coercive pressures of police interrogation, and with regard to any item that could potentially furnish a link in a chain of incriminating evidence, even though not sufficient in itself to convict. In most contexts, this right is deemed waived unless actively claimed by the right holder, and it is inapplicable to evidence for whose disclosure the government grants the right holder immunity (against any use, direct or indirect, to convict the right holder of crime).

miranda v. arizona (1966), which extended the right against self-incrimination to the police interrogation context, established special rules for this setting, elaborated in subsequent opinions. Statements by a person interrogated while in custody are presumed compelled, and hence, are inadmissible at trial to prove guilt, unless the suspect is told before the interrogation that he or she has the right to remain silent, to consult a lawyer before any questioning, and to have the lawyer present during questioning; that a lawyer will be provided if the suspect wants but cannot afford one; and that anything the suspect says can be used against him or her in court. If the suspect requests a lawyer, no questioning is permitted until one is provided, unless the suspect initiates further discussion with the police. If the suspect consents to questioning but subsequently indicates a desire to remain silent, the interrogation must cease.

The principal recent developments have arisen in two quite different contexts. One is the police-interrogation setting—unique because (as will be discussed) the detailed rules of Miranda and its progeny are only tenuously related to the constitutional ban on compelled self-incrimination. The other development, which unequivocally implicates the constitutional right itself, comprises efforts by investigatory targets to resist official demands for the production of evidence that could potentially lead to criminal charges. Opinions in both areas exhibit the Court's efforts to minimize interference with the truth-finding process.

The recent police-interrogation decisions preserve the Miranda doctrine while restricting its scope. The Court's reluctance to overrule Miranda outright is surprising in light of opinions strikingly eroding the doctrine's legitimacy. These opinions, culminating in oregon v. elstad (1985), view the Miranda doctrine not as commanded or entailed by the Fifth Amendment, but as a set of "prophylactic rules" devised by the Court to forestall genuine constitutional violations. Breach of Miranda 's requirements need not, therefore, violate the constitutional right against self-incrimination. This view leaves the Court free (as in Elstad) to hold certain evidence derived from such a breach admissible in circumstances in which the fruits of a constitutional violation must be suppressed. But it also undermines the very foundation of Miranda: why may the Court require police to obey rules that the Court itself concedes are neither required by the Constitution nor imposed to remedy constitutional violations? Both friends and critics of Miranda suggested that the Court was preparing to discard the doctrine altogether.

This has not happened, however, nor have opinions since Elstad crucially exploited the nonconstitutional status of Miranda. Rather, the Court has simply narrowed Miranda 's reach in various ways. "Interrogation," which triggers the warning requirement, includes conduct the police should know is likely to prompt incriminating admissions. Yet Arizona v. Mauro (1987) held that allowing (and recording) a meeting between an arrestee and his wife was not "interrogation," despite police awareness that such admissions might occur. Telling an unsophisticated suspect that a lawyer would be appointed "if and when you go to court" could cast doubt on the required notice that the lawyer would be provided "before any questioning." Yet Duckworth v. Eagan (1989) found no ambiguity, analyzing the amended warnings from a legally knowledgeable standpoint.

Most notably, the Court has repudiated suggestions—arguably latent in Miranda itself—that the Miranda doctrine guarantees a "rational," "responsible," or "fully informed" choice between silence and speech. Instead, the Court treats the doctrine solely as forestalling coercion and has found waivers of the constitutional right to silence valid in a variety of situations where the suspect's decision was less than "rational" or "fully informed." In Moran v. Burbine (1986), the police did not tell the suspect that a lawyer hired by his sister was trying to reach him. In Colorado v. Barrett (1987) the suspect apparently thought only written statements could be used against him. In Colorado v. Spring (1987) a suspect arrested for a firearms violation agreed to talk without knowing he would be questioned about an earlier murder in a different jurisdiction. Most strikingly, colorado v. connelly (1986) found voluntary a Miranda waiver by a mentally ill suspect in the grip of paranoid delusions, reasoning that only official coercion would render a waiver "involuntary."

In its Miranda jurisprudence the Court is dealing with what it views as a judge-made supplement to the right against self-incrimination. Its desire to keep the doctrine within narrow bounds may thus say little about the Court's commitment to the core concerns animating this right. The recent decisions concerning production of evidence, however, evince a readiness to limit the Fifth Amendment right itself.

In Fisher v. United States (1976) the Court distinguished the contents of items sought by the government and the act of producing those items. Each requires separate analysis, and the Fifth Amendment is violated only if either the contents or act of production is, by itself, compelled, testimonial, and incriminating. (In effect, as Peter Arenella has observed, a Fifth Amendment violation occurs only when the government's compulsion creates incriminating testimonial evidence that did not previously exist.) One result was to make the self-incrimination right harder to invoke; documents whose contents were created voluntarily are shielded only if the compelled act of producing them is itself both testimonial and incriminating. In contrast, by acknowledging that production itself could implicitly communicate incriminating information, Fisher opened a novel route for Fifth Amendment arguments. The rehnquist court's decisions in this area narrow that route in three ways.

First, the criterion for "testimonial" or "communicative" evidence was tightened in Doe v. United States (1988) to permit compelling a suspect to sign a directive authorizing foreign banks to release information about any accounts he might have. Although executing the directive would communicate directions to the banks, the Court insisted that only the communication of factual assertions or information counts as "testimonial." The Court left unexplained how informing a bank that it is authorized to make specified disclosures does not count as conveying "information."

More significantly, the "collective entity rule" precluding self-incrimination claims with respect to documents held as custodian for an organization was found applicable to the custodian's act of production, not merely the documents' contents. The collective-entity rule reflected the Court's view that the personal nature of the Fifth Amendment right was inconsistent with the impersonal representative capacity in which the custodian holds organizational records. After Fisher, the Court could have reinterpreted the rule as existing because the contents of such records were not created under compulsion—implying nothing about an act that was compelled. But braswell v. united states (1988) rejected this harmonization of the collective-entity and Fisher doctrines. The Court instead extended its pre-Fisher explanation of the collective entity rule by insisting that the representative capacity in which custodians hold documents makes even their individual acts of production not "personal." This strained "sleight of hand" insistence that a natural individual's overt behavior is somehow not that individual's "personal" act allowed the Court to escape an implication of its own act/content distinction that it feared would eviscerate the investigation of white-collar crimes.

Finally, in Baltimore City Department of Social Services v. Bouknight (1990), the Court combined Braswell 's custodial rationale with an amorphous expansive exception to the self-incrimination right for noncriminal regulatory schemes to reject the self-incrimination claim of a suspected child abuser ordered to produce her son in court. Although the mother's act of production would testify to her control over the child and could thereby assist her prosecution, the Court appealed to cases rejecting Fifth Amendment challenges to civil regulatory requirements not confined to groups inherently suspect of criminal activities. Reliance on this exception is troubling, however, because of its extraordinary manipulability. (Why, for example, regard as "civil" and "regulatory" a state juvenile-protection scheme intimately related to criminal laws against child abuse?) Doubts are scarcely dispelled by the Court's additional argument that Bouknight's status as custodian for her son under a prior court order was analogous to that of a custodian of corporate records. The "custodian" argument had never before extended beyond agents of collective entities, and it entailed ignoring this "custodian's" prior and continuing status as mother.

obiter dictum in Bouknight suggests that if the state should later seek to prosecute the mother, it may be prohibited from using the testimonial aspects of her act of production. Similarly, Braswell stated that although the government could compel a custodian to produce organizational records, it could not in a subsequent prosecution of the custodian divulge that he or she produced those records. There is a tension between these obiter dicta and the holding in each case that compelled production does not violate the Fifth Amendment. This tension suggests that the Court may be uneasy with the extent to which its decisions have in fact cut into the core area of the right against self-incrimination. In an unacknowledged fashion, the Court may be balancing the individual's self-incrimination right and the social goal of truth finding in an effort to accommodate both concerns.

David Dolinko


Arenella, Peter 1982 Schmerber and the Privilege Against Self-Incrimination: A Reappraisal. American Criminal Law Review 20:31–61.

Dolinko, David 1986 Is There a Rationale for the Privilege Against Self-Incrimination? UCLA Law Review 33:1063–1148.

Schulhofer, Stephen 1987 Reconsidering Miranda. University of Chicago Law Review 54:435–461.

Seidman, Louis Michael 1990 Rubashov's Question: Self-Incrimination and the Problem of Coerced Preferences. Yale Journal of Law and the Humanities 2:149–180.

Stuntz, William 1988 Self-Incrimination and Excuse. Columbia Law Review 88:1227–1296.

White, Welsh 1986 Defending Miranda: A Reply to Professor Caplan. Vanderbilt Law Review 39:1–22.