American Perspectives on Self-Incrimination and the Compelled Production of Evidence
| Author | Mark Berger |
| Published date | 01 December 2002 |
| Date | 01 December 2002 |
| DOI | http://doi.org/10.1177/136571270200600402 |
| Subject Matter | Article |
American perspectives
on
se
If-i
nc
r i mi
nat
i on and
the
compelled production
of
evidence
By
Mark
Berger*
Oliver
H.
Dean Distinguished Scholar and Professor of Law, University
of Missouri-Kansas City School
of
Law
Abstract.
The Fifth Amendment of the United States Constitution provides
that no person may be compelled in any criminal case to be a witness against
himself. The
Boyd
decision in
1886
recognised an intimate relation between
the privilege against self-incrimination and the restrictions on search and
seizure in the Fourth Amendment and created a virtually impenetrable
barrier to government demands that a suspect
or
defendant be compelled
to produce evidence against himself. However, since that time the Supreme
Court has progressively restricted the scope of Fifth Amendment protection
in relation to the compelled production of evidence. This has been achieved
by requiring all citizens to appear before grand juries; by denying Fifth
Amendment protection to entities; by holding that the compelled
production
of
evidence does not breach the Fifth Amendment unless the
very act
of
production is self-incriminatory; and by denying the privilege in
relation to required records. The Supreme Court’s stance reflects a
recognition of the complexity of contemporary law enforcement problems
and may be seen as an attempt to balance the state’s interest in the successful
prosecution of crime against the citizen’s interest in being free from state
intrusion. The effect
of
the Supreme Court’s reforms has been to broaden
government authority to compel offenders to assist in their
own
prosecutions
whilst limiting Fifth Amendment protection to incrimination through the
accused’s own testimony
or
its equivalent.
basic reality of the criminal justice process is that the successful
prosecution
of
criminal offences requires the successful collection
of
admissible evidence. Achieving that objective, however, is often difficult.
Complicated business frauds, for example, may be impossible to detect without a
Preparation
of
this article was supported
by
a grant
from
the
UMKC
Law School Research Fund.
THE INTERNATIONAL JOURNAL
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EVIDENCE
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218
AMERICAN PERSPECTIVES ON SELF-INCRIMINATION
thorough analysis of many seemingly unrelated corporate documents.
A
sexual
assault often requires the acquisition and scientific analysis of physical traces
that the suspect may have left at the scene of the crime. Robbery investigations
may call for the testimony of reluctant witnesses who observed the offence and
can identify the offender.
The prosecution clearly faces its greatest challenge in criminal investigations
requiring substantial evidence collection from a variety of sources. In part this is
the result of the larger volume of evidence that must be assembled. In addition,
however, the more varied the
types
of evidence that the prosecutor requires, the
greater the likelihood that legal restrictions on evidence collection procedures
will be encountered. This stems from the fact that the legal environment
governing the evidence collection process represents an effort to balance the
legitimate interest of the state in ensuring the successful prosecution of crime
against the individual interest of the accused in being free from unwarranted
state intrusions. At times the balance may weigh in favour of the suspect and
thereby make it difficult, if not impossible, for the prosecution to acquire
sufficient evidence to support a conviction.
In
the United States, one of the most significant restrictions on the prosecution’s
ability to obtain evidence is the privilege against self-incrimination. The doctrine
is rooted in the Fifth Amendment of the United States Constitution and applies
to all criminal proceedings at both the state and federal level.’ The language
creating the privilege is concise. providing simply that
‘No
person
...
may be
compelled in any criminal case to be a witness against himself.’2 At its core, it is
directed against government efforts to compel the production of evidence
from
a
criminal suspect that is either directly probative of guilt
or
constitutes a link in
the chain leading to proof of guilt.3
As
such, the American self-incrimination
privilege reflects principles that parallel the right to silence under English law‘
I
I1
2
3
4
At one time the first ten amendments to the United States Constitution,
known
as the Bill of
Rights, were viewed as limitations that applied exclusively to the federal government. States
were free to adopt similar restrictions as a matter of state law. but were not required to do
so.
Gradually, however. the United States Supreme Court ruled that virtually all
of
the provisions of
the Bill
of
Rights would be applied to the states. The self-incrimination privilege
of
the Fifth
Amendment received this treatment in
Malloy
v
Hogan.
378
US
1
(1964).
US
Constitution Amend.
V.
Counselman
v
Hitchcock,
142
US
547. 564-6 (1892).
In
so
ruling, the Supreme Court relied upon a
decision by Chief Justice John Marshall presiding over legal proceedings relating to treason
charges against Aaron Burr, the third Wcehesident
of
the United States.
Re
Willle,
25
F
Cas
38
at
40
(CC
Va
1807)
(No.
14,692e).
Lord Mustill described the right to silence as ‘a disparate group of immunities’, which includes
the right to refuse to answer questions on threat of punishment along with the right of the
accused not to take the
witness
stand at trial.
Smith
v
Dfrector
ofSertous
Fraud
Oflce
[1992] 3
All
ER
456.
An
American perspective on the right to silence is presented in
M.
Berger. ‘Rethinking Self-
Incrimination in Great Britain’.
61
Den LJ
507 (1984).
THE INTERNATIONAL JOURNAL
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