预防法第五修正案 Prophylactic-Fifth-Amendment.pdf

THE PROPHYLACTIC FIFTH AMENDMENT Boston University School of Law Public Law & Legal Theory Paper No. 17-14 forthcoming, Boston University Law Review (Volume 97) Tracey Maclin Boston University School of Law This paper can be downloaded without charge at: /law/faculty-scholarship/working-paper-series/ THE PROPHYLACTIC FIFTH AMENDMENT TRACEY MACLIN ∗ JUSTICE KENNEDY: So beating a prisoner to compel a—a statement is not a Fifth Amendment violation. DEPUTY SOLICITOR GENERAL PAUL CLEMENT: That’s right, Justice Kennedy. It’s not a Fifth Amendment violation. . . . . . . JUSTICE KENNEDY: What about the order of a trial judge in a civil case who orders the witness held in contempt and confined unless he testifies, and—and there’s a valid Fifth Amendment privilege that the judge is overlooking? No Fifth Amendmen t violation there? CLEMENT: No. I don’t think there’s a Fifth Amendment—I don’t think there’s a complete Fifth Amendment violation. The courts intervene there to protect the privilege. 1 INTRODUCTION The right guaranteed by the Fifth Amendment’s Self-Incrimination Clause appears straightforward: no person “shall be compelled in any criminal case to be a witness against himself.”2 Despite its basic terms, historical pedigree, and well-known status as a constitutional right, the public ’s understanding of what is protected by the Fifth Amendment is often ill informed, and even sophisticated lawyers are not always capable of explaining the scope and application of the right.3 Indeed