Maclin on Dead Infants and Taking the Fifth

Tracey Maclin (University of Florida Levin College of Law) has posted Dead Infants and Taking the Fifth (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This article is part of a symposium dedicated to the life and scholarship of Professor Sherry Colb. Professor Colb was a brilliant legal scholar and an admired teacher. Professor Colb and I first bonded over the fact that we both taught Constitutional Criminal Procedure.

In a 2013 blog, Professor Colb took a limited view of the Fifth Amendment’s Self-Incrimination Clause. She contended that if official brutality and false confessions could be eliminated, the rationale for giving people the right to refuse to provide truthful information about their own actions in open court would diminish substantially.

As someone who supports a broad interpretation of the Fifth, I offer a counterview of Professor Colb’s conception of the privilege by analyzing a 1990 Supreme Court ruling that supports her thesis – Baltimore City Department of Social Services v. Bouknight.

I hope to demonstrate that the goal of the Fifth Amendment is more than deterring official brutality and false confessions. I offer a straightforward conception of the privilege: The point of the privilege is to guarantee that no person should be compelled when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. My view of the amendment is harmonious with its text and history. Relying on this understanding of the privilege, this tribute contends that an important segment of the modern Court’s Fifth Amendment doctrine is inconsistent with a basic purpose of the privilege, namely, conferring an individual right that can be invoked whenever official compulsion threatens a substantial risk of self-incrimination.