TAKING THE FIFTH AND MIS-TAKING IT A Dialogue On Compelled Self-incrimination

The Fifth Amendment to the Constitution states that "No person . . . shall be compelled in any criminal case to be a witness against himself." In this dialogue, law professors and brothers Akhil Reed Amar and Vikram David Amar discuss how this language should be interpreted. — Ed.

Vik: I saw your op-ed in Monday's New York Times about Enron bigwigs pleading the Fifth Amendment in Congress, and had a few questions/thoughts.

Akhil: Shoot.

Vik: You say the Fifth Amendment, properly understood, allows Congress to force a person — under threat of contempt — to spill his guts outside of a criminal proceeding, and requires only that the actual testimony he gives before Congress be excluded from any later criminal trial against him.

Akhil: Right. If the testimony itself is not introduced against him at trial, he has never been compelled to witness against himself "in a criminal case" within the meaning of the Amendment.

Vik: In other words, the government could use this testimony to learn about or locate other evidence that can then be introduced against him in a criminal case. For example, if Congress forces Al to testify that Ben was at a key meeting, and that Charles has a smoking-gun document in his possession, the government could follow these leads, and then bring a case against Al featuring witnesses Ben and Charles and the smoking-gun document.

Akhil: Yup. The key distinction here is between two kinds of immunity. There is narrow "testimonial" immunity, which prevents only introduction of the testimony itself in the criminal trial against a person. And there is broad "use-fruits" immunity, which excludes not just the testimony but also all leads and fruits generated by that testimony.

The Fifth Amendment requires narrow "testimonial" immunity. The Supreme Court has required the broader "use-fruits" immunity, but that immunity is nowhere to be found in the Amendment's actual words, which focus on testimony — "witnessing" — not fruits.

Vik: Why would it make sense to write–or read–the Fifth so narrowly?

Akhil: For the same reason we have many other rules of constitutional criminal procedure — to protect innocent defendants from erroneously being found guilty. Many innocent and truthful defendants might well be nervous in court, and that nervousness — sweating, stuttering, misspeaking, getting confused — might be misread as guilt, especially after a skilled prosecutor used all his lawyer's tricks to make the witness look bad and then spun things to the jury.

Remember, until Gideon v. Wainwright in 1963, many indigent and vulnerable defendants lacked defense counsel altogether. Even today, poor and uneducated defendants are at special risk. Compelled testimony from defendants pose a real threat of erroneously convicting the innocent.

And of course the same problem exists if the testimony is compelled in two steps: First, the (stuttering, sweating) words are compelled in a congressional hearing. Second, they are later introduced directly (via transcript or videotape) in the ensuing criminal trial.

However, physical evidence — blood, fingerprints, smoking guns, and the like — and third-party witnesses are very different, and do not pose the same risks. So it makes sense to allow these bits of evidence at trial — just as we generally allow physical evidence and other witnesses — even if these bits of evidence came to the government's attention as a result of the congressional hearings.

Vik: Is protecting innocent defendants from erroneous convictions the only value underlying the Fifth Amendment? How about the so-called "cruel trilemma" — the notion that without a broad privilege, the defendant would be forced into the cruel, tripartite choice among self-accusation, perjury or contempt? Or the idea that a person should not be made to be the instrument of his own destruction in court? Don't both of these rationales argue in favor of the broader "use-fruits" immunity?

Akhil: Perhaps, but neither of these rationales squares with the precise words of the Fifth Amendment the way testimonial immunity does. Moreover, these rationales are far more morally problematic than the innocence-protection idea. They also prove too much–with outlandish logical implications sharply inconsistent with basic legal practices in place today.

Take the cruel trilemma notion. It benefits only the guilty — by hypothesis, there is no trilemma if one is innocent and simply says so. Why should society be so tender towards wrongdoers? My theory instead focuses on protecting innocent persons. To me, the real cruelty is forcing an innocent defendant to take the stand even though this person believes that his truthful testimony will nevertheless lead the jury to convict (because he sweats or stutters or is likely to be tripped up by a crafty prosecutor).

Moreover, if we care about cruelty, forcing guilty people to tell the truth about their own crimes seems far less cruel than forcing innocent mothers to tell the truth about their children's crimes (which the government is allowed to do). Why is requiring people to tell the truth about their own criminal misconduct impermissibly cruel rather than poetically just? In civil cases parties are forced all the time to take the stand and admit their misconduct and other embarrassing things about their lives.

As for the non-instrumentalization idea, it also proves too much. The government "uses" persons every day by forcing witnesses to tell the truth in civil and criminal cases, in grand juries, in legislative hearings, and elsewhere.

Indeed, even in criminal cases, the government regularly uses defendants as the means of their own undoing. The government forces defendants to submit their blood for DNA testing, and their breath for alcohol tests. If these instrumental uses are okay, why is using testimonial fruit so different?

Vik: Maybe fruits are different because they are a product of the defendant’s own words.

Akhil: Nice try, but current case law already allows the government to extract and introduce a defendant's voiceprint or handwriting sample — forcing defendants to speak and write words — and obliges defendants to sign over (with words) their bank records.

Vik: But your approach is inconsistent with other cases, of course. Why should we resolve the current confusion in case law by restricting the privilege rather than expanding it?

Akhil: We’ve already discussed the plain meaning of the Amendment’s text — which surely should count for something — and the moral shakiness of standard Fifth-Amendment theories other than innocence protection. In addition, it’s critical to see how these other theories actually harm innocent defendants by making it more likely that they will be erroneously convicted and/or suffer extended pretrial detention and unspeedy trials. The full explanations appear in chapters 2 and 3 of my book, The Constitution and Criminal Procedure, and are hard to compress.

Vik: That sounds suspiciously like a book plug.

Akhil: I confess. But here’s the idea in a nutshell. Consider a situation where Abe is innocent, and his friend Bob in fact is guilty, but the government wrongly thinks Abe did it. Although Abe is on trial for his life, he is not allowed today to force Bob to take the stand and 'fess up. Guilty Bob's Fifth Amendment rights today trump innocent Abe's Sixth Amendment right to compel witnesses to testify!

Now consider a scenario where the government suspects Abe and Bob of being partners in crime. Current law often puts Abe in extended pretrial detention while Bob is being tried; only after Bob’s verdict can Bob be made to testify against Abe without immunity problems.

But this system undercuts Abe's speedy trial rights and liberty interests. If Abe turns out to be innocent a great injustice has been done. Testimonial immunity solves this problem by allowing Abe and Bob to be tried jointly and immediately, with two juries sitting (one for each defendant) and each defendant allowed to question the other.

I can't go into all the details here, but trust me: there's no such thing as a free lunch. Overprotecting guilty defendants not only hurts innocent victims of crime, it also hurts other innocent defendants.

Vik: You also argue that overbroad immunity distorts separation of powers.

Akhil: Right. Edward Lazarus has made a similar point. Congress is charged with monitoring other branches of government and reforming flawed laws. But in order to do its job, it often needs facts, and overbroad Fifth Amendment immunity means that it can get those facts only by interfering with the executive's prosecution function. As a result, Congress sometimes fails to fully investigate things it should.

Vik: Doesn’t overbroad immunity also turn federalism topsy-turvy? A state legislative hearing can in effect immunize the witness from later federal prosecution — a kind of state nullification of federal criminal law. The problem is even worse if the state hearing is a sham, or a "friendly" proceeding, but not provably so.

Akhil: Nice points. Of course, on my theory, the government could force suspects to talk not merely in state and federal legislative hearings but also in grand juries. And then, prosecutors could use all the leads (but not the testimony itself) at trial.

Strictly speaking, grand juries are not "criminal cases." On the other hand, prosecutors usually control grand juries, and run them in anticipation of criminal cases being brought. So perhaps there is some argument that compelling testimony in grand juries is too close to compelling testimony in the criminal case itself.

Whatever one thinks about this argument for use-fruits immunity for compelled grand jury testimony — in the end, I don’t buy it — the key point is that state and federal legislative hearings are qualitatively different. They are not run by sitting prosecutors but conducted by branches of government constitutionally separate from the executive.

Thus, even if use-fruits immunity were preserved for grand juries — because testimony in these places looks rather close to testimony "in a criminal case" — a narrower rule of testimonial immunity should govern state and federal legislative hearings. So long as these hearings are pursuing legitimate areas of legislative inquiry, we should presume that they are not part and parcel of a criminal prosecution, but are rather quite distinct from a "criminal case."

Vik: Text, structure, logic, and policy aside, is there historical support for narrow testimonial immunity?

Akhil: Lots. Testimonial immunity was the dominant rule in state courts during most of the nineteenth century, and is also squarely supported by nineteenth-century English caselaw, not to mention a landmark congressional statute signed by Abraham Lincoln in the very era that Congress that crafted the Fourteenth Amendment, which applies self-incrimination principles to states.

Akhil: The Fifth Amendment isn’t the only constitutional game in town. The First and Fourth Amendments also come into play when the government tries to go fishing into the minds and papers of individuals.

I would accompany my proposed restriction of Fifth Amendment immunity with a broadening of First and Fourth Amendment protection. For example, legislators should not ordinarily be allowed to inquire into a private citizen’s political or religious views or associations, absent strong independent evidence linking the person and his associates with violent crime or something comparable.

One reason for basing such privilege in the First and Fourth Amendments rather than the Fifth is that the former Amendments are not limited to criminal cases, but apply much more generally, and cannot be overcome with a grant of suitably broad "immunity." The general (if nonabsolute) privilege to keep one’s political and religious views and associations private would be more like other true privileges — priest-penitent, doctor-patient, attorney-client, spousal — which apply outside criminal cases and do not disappear when "immunity" is given.

Vik: Indeed, we would need to bolster the First and the Fourth even if we didn’t narrow the Fifth—the problem of political witch-hunting is not unique to testimonial immunity. Even current use-fruits immunity would allow the government to immunize one person, force him to reveal the identity of all his other political or religious associates, and then go after all the others with criminal prosecutions fed by the first witness’s testimony and leads.

Akhil: Exactly. It sounds like you are convinced.

Akhil: Why can’t everyone be as intelligent and reasonable as my kid brother?