Ripeness of Self-Incrimination Clause Disputes

63 Pages Posted: 24 Jan 2006

See all articles by Michael Mannheimer

Michael Mannheimer

Northern Kentucky University - Salmon P. Chase College of Law

Abstract

Historically, federal courts have resolved disputes over claims of the Fifth Amendment privilege against self-incrimination at the time that government compulsion is brought to bear on a person for the disclosure of information. This practice of resolving disputes over claims of the privilege at the time the dispute arises flows from the courts' assumption that the Self-Incrimination Clause protects two separate rights: the right not to have one's compelled words used against one in a criminal judicial proceeding, and the independent right not to have such words compelled by the government in the first place.

However, this conventional wisdom regarding Self-Incrimination Clause rights is in serious tension with both the language of the Clause and the Supreme Court's recent decision in Chavez v. Martinez, in which the Court held that the Clause is not violated until a person's compelled self-incriminatory words are actually used against him in a criminal proceeding. This holding throws into question the courts' historic practice of addressing Self-Incrimination Clause disputes without regard for whether such use of the compelled disclosures is even likely to occur. In this Article, Professor Mannheimer applies the Supreme Court's ripeness doctrine to the universe of Self-Incrimination Clause disputes that are litigated under current law, and concludes that many of them should not be resolved at all because they are not ripe for review. Professor Mannheimer argues that federal courts generally should not adjudicate such disputes until the government clearly intends to use, or already has used, the compelled disclosures against the person invoking the Clause.

Keywords: Constitutional Law, Criminal Procedure, fifth amendment, self-incrimination, ripeness

Suggested Citation

Mannheimer, Michael, Ripeness of Self-Incrimination Clause Disputes. Journal of Criminal Law and Criminology, Vol. 95, No. 4, pp. 1261-1323, 2005, Available at SSRN: https://ssrn.com/abstract=877194

Michael Mannheimer (Contact Author)

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

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