An Alternative to the Constitutional Privilege Against Self-Incrimination
48 Pages Posted: 17 Jul 2008
This article proposes that the 5th Amendment self-incrimination privilege, as it is presently understood, be overruled or repealed, and it proposes a substitute. After exploring the genesis of the privilege and its historical purposes, the article examines problems with the current privilege, as well as the values that it serves. Professor Bonventre contends that there is little independent justification for protecting the withholding of evidence by individuals reasonably suspected of criminality. The proffered reasons for such protection are typically circular arguments favoring the adversarial system and disfavoring incrimination by the suspect himself. On the other hand, Bonventre finds compelling reasons for a free society to guard against certain evils which are, at least partially, thwarted by the privilege: the inhumane extraction of confessions, government fishing expeditions, and unwarranted invasions of personal privacy. Professor Bonventre outlines a proposed alternative to the privilege which might avoid the present problems and more effectively promote the values it serves.
Keywords: 5th Amendment, self-incrimination, criminal law, confessions, interrogation, privacy, inhumane treatment
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