59 Pages Posted: 13 Jun 2007
This article argues that the Supreme Court has systematically failed to address the important questions about how the Fifth Amendment right against compelled self-incrimination should apply to the police interrogation practices that emerged during the nineteenth century, well after the framing of the Bill of Rights itself. It undertakes to explain why that failure occured, and it also argues that the Court compounded its earlier failure when it misconstrued the Fifth Amendment right as a mere trial right in Chavez v. Martinez, 538 U.S. 760 (2003).
The article initially surveys the opinions in Martinez and argues that the originalist analysis in Justice Thomas's majority opinion ignored the obvious point that the right against self-incrimination is not set out among the criminal trial rights articulated in the Sixth Amendment, but rather is set out among the rights pertaining to the initiation of criminal prosecutions in the Fifth Amendment. It also points out that Justice Thomas's narrow construction of in any criminal case as though that phrase referred only to a criminal defendant's own trial conflicts with legislative history that indicates that the phrase was inserted in the Amendment merely to indicate that the right applied only to criminal but not civil matters.
The article then attempts to illuminate the intended meaning of the Fifth Amendment right by reconstructing the framing-era understanding of the right and by identifying the confusion that arose during the nineteenth century between the constitutional right, which restricted government interrogations, and the late-eighteenth century evidentiary confession doctrine, announced in King v. Warrickshall (1883) (a case which was not published until after the framing), that only addressed the admissibility of confessions obtained by private persons. The article also argues that the Supreme Court initially failed to apply the constitutional right to police interrogation when that practice appeared in the mid nineteenth century because it did not yet perceive such interrogations to be governmental, and that the original understanding of the right was further obscured when a defendant's right to be silent emerged in criminal trial practice in the late nineteenth century. Thus, a constitutional right against government interrogation was transformed instead into a mere rule of admissibility of the fruits of such interrogation. In sum, the treatment of the Fifth Amendment right in Chavez v. Martinez as merely a trial right is the product of compounded misunderstandings of the Fifth Amendment right, but is far removed from the original understanding of that right.
Keywords: Fifth Amendment, self-incrimination, confession, interrogation, originalism, 1983, original meaning, Thomas, framers, Martinez, Miranda, Warrickshall, Warickshall
JEL Classification: K00
Suggested Citation: Suggested Citation
Davies, Thomas Y., Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a 'Trial Right' in Chavez V. Martinez. Tennessee Law Review, Vol. 70, pp. 987-1045, 2003. Available at SSRN: https://ssrn.com/abstract=992830