The Fifth Amendment: Right or Privilege?

31 Pages Posted: 3 Oct 2011 Last revised: 6 Oct 2011

Date Written: October 1, 2011

Abstract

“No person...shall be compelled in any criminal case to be a witness against himself.” These words from the Fifth Amendment to the Constitution of the United States of America give to all Americans the right to refuse to testify against themselves in a court of law. This right to silence is the result of long and heroic struggles on the part of many people over the course of hundreds of years.

But despite the fact that this right is hard won, and despite the fact that it comes down to us from such a long time ago, many excellent thinkers, such as Jeremy Bentham and John Stuart Mill, have questioned its wisdom. Despite the fact that it is guaranteed by our Constitution, and is part of the Bill of Rights, it has been traditional since the beginning of this century to refer to it as the privilege against self-incrimination. Yet at the same time that the judiciary was referring to the right to silence in this unprecedented manner, it consistently expanded the right to a position of prominence in our justice system.

The right to silence also has a unique place in our language. To take the Fifth is a cliché that has become synonymous with guilty evasion. The Fifth Amendment is the only right we have that has given rise to such a phrase, and it is one of most well known rights in the Constitution, second only to the first. With the invocation of the Fifth Amendment goes a presumption of guilt, and even where the law specifically requires jurors not to consider refusal to testify as an indication of guilt, the vast majority who invoke the right are found guilty.

During the 1950s when many communists, communist sympathizers, and others found it convenient to invoke the Fifth Amendment during congressional hearings, the right to silence became a popular political issue. Many people, mostly conservatives, argued against the legitimacy of a right to silence, and those who argued for the right found that the traditional arguments in its favor were not very strong. Generally, when an argument for a right to silence was advanced in the case of self-incriminating testimony, it was found to apply equally well to all testimony.

The question has once again lost immediate political relevancy, but still remains: Is the right to silence as guaranteed by our Constitution a legitimate right, or is it merely a privilege granted to American citizens, but a liberty that we could do without? This paper will attempt to answer that question by reviewing the traditional arguments for a right to silence and then presenting an original argument for the right that seeks to avoid the problem of proving a complete right to silence rather than just a right in the case of self-incriminating evidence.

Keywords: Constitution, Bill of Rights, Fifth Amendment, Right to Silence, Self Incrimination

Suggested Citation

Mick, Alan Armand, The Fifth Amendment: Right or Privilege? (October 1, 2011). Available at SSRN: https://ssrn.com/abstract=1936925 or http://dx.doi.org/10.2139/ssrn.1936925

Alan Armand Mick (Contact Author)

University of Chicago ( email )

1101 East 58th Street
Chicago, IL 60637
United States

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