The Prophylactic Fifth Amendment


forthcoming, Boston University Law Journal (Vol. 97, 2017)
May 2, 2017

Abstract

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.

Tracey Maclin
Joseph Lipsitt Faculty Research Scholar
Professor of Law

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

tmaclin@bu.edu