Public Law and Legal Theory Papers The Self-Incrimination Clause Explained and Its Future Predicted

Ronald Jay, Allen, M Kristin Mace
unpublished
Like many areas of the law, the Fifth Amendment has defied theoretical explanation by scholars. We examine whether the fifth amendment cases can be explained with a relatively simple theory, and find that they can. The key to that theory is the recognition that, although never acknowledged by the Court, its cases make plain that "testimony" is the substantive content of cognition -the propositions with truth-value that people hold or generate (as distinct from the ability to hold or generate
more » ... positions with truth-value). This observation leads to a comprehensive positive theory of the Fifth Amendment right: the government may not compel disclosure of the incriminating substantive results of cognition that themselves (the substantive results) are the product of state action. As we demonstrate in this article, this theory explains all of the cases, a feat not accomplished under any other scholarly or judicial theory; it even explains the most obvious datum that might be advanced against it -the sixth birthday question in Muniz. There remain two sources of ambiguity in Fifth Amendment adjudications. First, compulsion and incrimination are both continuous variables -questions of degree. The Court has recognized this and set about defining the amount of compulsion and incrimination necessary to a Fifth Amendment violation. The result is a common law of both topics rather than a precise metric of either. These two variables are independent and do not interact, which reduces the complexity of decision making. Compulsion, in other words, is in no way determined by the extent to which the results are incriminating. Compulsion is determined on its own, as is the sufficiency of incrimination. The second source of ambiguity arises from the Court not explicitly equating "testimony" with cognition, though that is precisely what has controlled its decisions. Given that the Court's opinions have not focused on substantive cognition as the third element of a Fifth Amendment violation, it is
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