The Prophylactic Fifth Amendment

39 Pages Posted: 9 May 2017

See all articles by Tracey Maclin

Tracey Maclin

University of Florida Levin College of Law

Date Written: May 2, 2017


This article is part of a symposium issue discussing the fiftieth anniversary of Miranda v. Arizona that will be published in a forthcoming issue of the Boston University Law Review. Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced the Court to decide when the violation occurs. Six Justices gave us their answer: a violation occurs when compelled incriminating statements are introduced in a criminal case. Coercion during police interrogation does not violate the Fifth Amendment. This answer not only resolved the Fifth Amendment claim raised in Chavez, but it also left no doubt that Americans do not enjoy a right to remain silent. Nor do persons, after Chavez, enjoy a substantive right to be free from coercive governmental questioning, or a constitutional protection against penalties or forms of punishment short of the initiation of a criminal case, such as a contempt order from a judge for failing to answer an incriminating question.

When carefully examined, Chavez is a troubling ruling from several vantage points. The most disquieting aspect of Chavez, however, is Justice Thomas’s effort to remake Fifth Amendment law. As will be explained below, Justice Thomas’s opinion in Chavez is ultimately an effort to transform the Self-Incrimination Clause from a substantive right to a judge-made prophylactic rule. Part I of this Article describes Chavez and the reasoning behind the Court’s Fifth Amendment ruling. Part II critiques the legal analysis of Justice Thomas’s and Justice Souter’s opinions in Chavez. While Justices Thomas and Souter insist that their reasoning was commanded by the Court’s precedents, the facts in Chavez not only confronted the Court with a novel legal issue, but also show that the Court’s precedents pointed in a different direction than the result embraced by either Justice. Finally, Part III identifies some of the consequences for Fifth Amendment law under the logic of Chavez.

JEL Classification: K10, K14, K19, K40, K49

Suggested Citation

Maclin, Tracey, The Prophylactic Fifth Amendment (May 2, 2017). Boston University Law Review, Vol. 97, Forthcoming, Boston Univ. School of Law, Public Law Research Paper No. 17-14, Available at SSRN:

Tracey Maclin (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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