Fifth Amendment:
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 offence 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.
The Court has settled upon the principle that the clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion.1 To protect these interests and to preserve these values, the privilege is not to be interpreted literally.
Rather, the sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.
2 Furthermore, [t]he privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . .
3
The privilege against self-incrimination parries the general obligation to provide testimony under oath when called upon, but it also applies in police interrogations. In all cases, the privilege must be supported by a reasonable fear that a response will be incriminatory. The issue is a matter of law for a court to determine,4 and therefore, with limited exceptions, one must claim the privilege to benefit from it.5 Otherwise, silence in the face of questioning may be insufficient to invoke the privilege because it may not afford an adequate opportunity either to test whether information withheld falls within the privilege or to cure a violation through a grant of immunity.6 A witness who fails to claim the privilege explicitly when an affirmative claim is required is deemed to have waived it, and waiver may be found where the witness has answered some preliminary questions but desires to stop at a certain point.7 However, an assertion of innocence in conjunction with a claim of the privilege does not obviate the right of witnesses to invoke it, as their responses still may provide the government with evidence it may later seek to use against them.8
Although individuals must have reasonable cause to apprehend danger and cannot be the judge of the validity of their claims, a court that would deny a claim of the privilege must be perfectly clear, from a careful consideration of all the circumstances in the case, that the individual is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.
9 To reach a determination, furthermore, a trial judge may not require a witness to disclose so much of the danger as to render the privilege nugatory. As the Court observed:
[I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.10
The privilege against self-incrimination is a personal one and cannot be used by or on behalf of any organization, such as a corporation. Thus, a corporation cannot object on self-incrimination grounds to a subpoena of its records and books or to the compelled testimony of those corporate agents who have been given personal immunity from criminal prosecution.11 Nor may a corporate official with custody of corporate documents that incriminate him personally resist their compelled production on the assertion of his personal privilege.12
A witness has traditionally been able to claim the privilege in any proceeding whatsoever in which testimony is legally required when his answer might be used against him in that proceeding or in a future criminal proceeding or when it might be exploited to uncover other evidence against him.13 Incrimination is not complete once guilt has been adjudicated, and hence the privilege may be asserted during the sentencing phase of trial.14 Conversely, there is no valid claim on the ground that the information sought can be used in proceedings which are not criminal in nature,15 and there can be no valid claim if there is no criminal prosecution16 The Court in recent years has also applied the privilege to situations, such as police interrogation of suspects, in which there is no legal compulsion to speak.17
What the privilege protects against is compulsion of testimonial
disclosures. Thus, the clause is not offended by such non-testimonial compulsions as requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, to model particular clothing, or to give samples of handwriting, fingerprints, or blood.18 A person may be compelled to produce specific documents even though they contain incriminating information.19 If, however, the existence of specific documents is not known to the government, and the act of production informs the government about the existence, custody, or authenticity of the documents, then the privilege is implicated.20 Application of these principles resulted in a holding that the Independent Counsel could not base a prosecution on incriminating evidence identified and produced as the result of compliance with a broad subpoena for all information relating to the individual’s income, employment, and professional relationships.21
The protection is against compulsory
incrimination, and traditionally the Court has treated within the clause only those compulsions which arise from legally enforceable obligations, culminating in imprisonment for refusal to testify or to produce documents.22 The compulsion need not be imprisonment, but can also be termination of public employment23 or disbarment of a lawyer24 as a legal consequence of a refusal to make incriminating admissions. The degree of coercion may also prove decisive, the Court having ruled that moving a prisoner from a medium security unit to a maximum security unit was insufficient to compel him to incriminate himself in spite of the attendant loss of privileges and the harsher living conditions.25 However, although it appears that prisoners26 and probationers27 have less protection than others do, the Court has not developed a clear doctrinal explanation to identify the differences between permissible and impermissible coercion.28
It has long been the rule that a defendant who takes the stand on his own behalf does so voluntarily, and cannot then claim the privilege to defeat cross-examination on matters reasonably related to the subject matter of his direct examination,29 and that such a defendant may be impeached by proof of prior convictions.30 But, in Griffin v. California,31 the Court refused to permit prosecutorial or judicial comment to the jury upon a defendant’s refusal to take the stand on his own behalf, because such comment was a penalty imposed by courts for exercising a constitutional privilege
and [i]t cuts down on the privilege by making its assertion costly.
32 Prosecutors’ comments violating the Griffin rule can nonetheless constitute harmless error.33 Nor may a prosecutor impeach a defendant’s trial testimony through use of the fact that upon his arrest and receipt of a Miranda warning he remained silent and did not give the police the exculpatory story he told at trial.34 But where the defendant took the stand and testified, the Court permitted the impeachment use of his pre-arrest silence when that silence had in no way been officially encouraged, through a Miranda warning or otherwise.35
Further, the Court held inadmissible at the subsequent trial a defendant’s testimony at a hearing to suppress evidence wrongfully seized, because use of the testimony would put the defendant to an impermissible choice between asserting his right to remain silent and invoking his right to be free of illegal searches and seizures.36 The Court also proscribed the introduction at a second trial of the defendant’s testimony at his first trial, given to rebut a confession which was subsequently held inadmissible, since the testimony was in effect fruit of the poisonous tree,
and had been coerced
from the defendant through use of the confession.37 Potentially most far-reaching was a holding that invalidated the penalty structure of a statute under which defendants could escape a possible death sentence by entering a guilty plea; the statute needlessly encourage[d]
waivers of defendant’s Fifth Amendment right to plead not guilty and his Sixth Amendment right to a jury trial.38
Although this needless encouragement
test assessed the nature of the choice required to be made by defendants against the strength of the governmental interest in the system requiring the choice, the Court soon developed another test stressing the voluntariness of the choice. A guilty plea entered by a defendant who correctly understands the consequences of the plea is voluntary unless coerced or obtained under false pretenses; moreover, there is no impermissible coercion where the defendant has the effective assistance of counsel.39 The Court in an opinion by Justice Harlan then formulated still another test in holding that a defendant in a capital case in which the jury in one process decides both guilt and sentence could be put to a choice between remaining silent on guilt or admitting guilt and being able to put on evidence designed to mitigate the possible sentence. The pressure to take the stand in response to the sentencing issue, said the Court, was not so great as to impair the policies underlying the Self-Incrimination Clause, policies described in this instance as proscription of coercion and of cruelty in putting the defendant to an undeniably hard
choice.40 Similarly, the Court held that requiring a defendant to give notice to the prosecution before trial of his intention to rely on an alibi defense and to give the names and addresses of witnesses who will support it does not violate the clause.41 Nor does it violate a defendant’s self-incrimination privilege to create a presumption upon the establishment of certain basic facts from which the jury may infer the defendant’s guilt unless he rebuts the presumption.42
The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution is precluded,43 or if the result of the answers is not incrimination, but rather harm to reputation or exposure to infamy or disgrace.44 The clause does not prevent a public employer from discharging an employee who, in an investigation specifically and narrowly directed at the performance of the employee’s official duties, refuses to cooperate and to provide the employer with the desired information on grounds of self-incrimination.45 But it is unclear under what other circumstances a public employer may discharge an employee who has claimed his privilege before another investigating agency.46
Finally, the rules established by the clause and the judicial interpretations apply against the states to the same degree that they apply against the Federal Government,47 and neither sovereign can compel discriminatory admissions that would incriminate the person in the other jurisdiction.48 There is no cooperative internationalism
that parallels the cooperative federalism and cooperative prosecution on which application against states is premised, and consequently concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause.49
Required Records Doctrine
Although the privilege is applicable to an individual’s papers and effects,50 it does not extend to corporate persons; hence corporate records, as has been noted, are subject to compelled production.51 In fact, however, the Court has greatly narrowed the protection afforded in this area to natural persons by developing the required records
doctrine. That is, it has held that the privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.’
52 This exception developed out of, as Justice Frankfurter showed in dissent, the rule that documents which are part of the official records of government are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate the regulation of the business being conducted, so the reasoning goes, the records become public at least to the degree that government could always scrutinize them without hindrance from the record-keeper. If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment—to say nothing of State and local legislation —has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume.
53
It may be assumed at the outset that there are limits which the government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself.
54 But the only limit that the Court suggested in Shapiro was that there must be a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator.
55 That there are limits established by the Self-Incrimination Clause itself rather than by a subject matter jurisdiction test is evident in the Court’s consideration of reporting and disclosure requirements implicating but not directly involving the required-records doctrine.