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Where Did the Fifth Amendment Come From?

By Dahlia LithwickPosted Tuesday, Feb. 12, 2002, at 3:36 PM ET

Former Enron Chairman Kenneth Lay asserted his Fifth Amendment rights before the Senate Commerce Committee today, "respectfully declining to answer" any of the committee's questions. What is the history behind, and rationale for, the Fifth Amendment right not to testify against oneself?

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The Fifth Amendment to the U.S. Constitution provides that "no person ... shall be compelled in any criminal case to be a witness against himself." The right was created in reaction to the excesses of the Courts of Star Chamber and High Commission—British courts of equity that operated from 1487-1641. These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient "proof" came from browbeating confessions out of the accused.

These courts required the accused to answer any question put to him, without advance notice of his accusers, the charges against him, or the evidence amassed. With the abolition of the Courts of Star Chamber and High Commission, the common law courts of England incorporated this principle of nemo tenetur—that no man should be bound to accuse himself. By the 18^th century, English law provided that neither confessions coerced during the trial nor pretrial confessions obtained through torture could be used. This was based on the belief that coerced confessions were inherently unreliable.

The right to be free from self-incrimination was established in nine state constitutions and was a tenet of the common law throughout most of the colonies before it appeared in the U.S. Constitution. Since then, the U.S. Supreme Court has expanded the Fifth Amendment to apply not only to criminal proceedings and pretrial proceedings in criminal matters, including police-station interrogations, but also to "any other proceeding, civil or criminal, formal or informal, where his answers might incriminate him in future criminal proceedings." The law also prohibits prosecutors from making reference to a defendant's refusal to take the stand as probative of guilt. So long as the government is compelling potentially incriminating speech—either before a jury or a Senate Committee—the right can be invoked.

Bonus Explainer: In the statement he made today before Congress, Lay quoted from an unnamed 2001 Supreme Court opinion stating that one of the Fifth Amendment's "basic functions … is to protect innocent men …" What was the case?

Answer: Ohio v. Reiner, a unanimous opinion reversing the Ohio Supreme Court's ruling that a witness who denies all culpability doesn't have a legitimate Fifth Amendment privilege against self-incrimination.

Next question?

Explainer thanks Professor Leonard W. Levy for his 1968 book, The Origins of the Fifth Amendment.

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Dahlia Lithwick is a Slate senior editor.

COMMENTS

Reader Comments From The Fray:

In what way the Fifth protects the innocent is an interesting question. Traditionally, it was supposed to shield the subject from the "cruel trilemma" of perjury, self-incrimination or contempt. If innocent, no trilemma--just explain yourself.

One straightforward answer depends on the distinction between actual and legal guilt--i.e. you have the right not to answer a question if the answer would help the government prove a case against you even if you were in fact not guilty. Another is more systemic. Absent the Fifth Amendment privilege, investigating a criminal case would be like dynamiting fish. The police would round up everybody, and make them all account for themselves--presumably holding them prisoner until they did. The right of all the innocent people to go about their business free from government interference would be trampled on. The privilege makes the government do its own work, i.e., gathering evidence against the accused sufficient to meet its burden of proof.

--Ex-fed

(To find or answer this post, click here.)

Akhil Reed Amar says that one of the purposes of the fifth amendment's privilege against self-incrimination is to protect "the innocent but inarticulate defendant, who might be made to look guilty if subject to crafty questioning from a trained inquisitor."

For this, he cites Wilson v. United States, 149 US 60, 66 (1893).

--J&C's Christopher

(To find or answer this post, click here.)

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