Volume 100 -- Issue 3 Georgetown Law Journal

Self-Incrimination and Separation of Powers

The Fifth Amendment’s Self-Incrimination Clause serves two purposes. First, and most obviously, it protects the rights of individuals in criminal proceedings. But the Clause also serves less obvious, though immensely important, separation of powers concerns. The Clause is limited by its own terms: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The Clause forbids only compelled “witness[ing]” within a “criminal case.” That limitation is substantive, excluding civil cases, and temporal, excluding actions not part of “any criminal case.” The Clause forbids a judge from compelling a criminal defendant to testify against himself, under penalty of contempt, during a criminal case instituted against him. It also forbids the introduction of self-incriminating statements “compelled” outside the court- house walls “against” the defendant. But following the Supreme Court’s fractured opinion in Chavez v. Martinez, there has been much disagreement among the lower federal courts over a question the Court left open: When does any criminal case begin? Does a criminal case mean a trial, or does it include other types of proceedings before or in place of a trial? This Note attempts to resolve this confusion, which, “like most confusion in law, stems from insuffi- cient attention to text.” A close reading of the text of the Self-Incrimination Clause reveals that the Clause restricts judicial activity, and that judges are bound to uphold and protect the privilege in any proceeding over which they preside.

This Note uses Professor Nicholas Rosenkranz’s methodology to demonstrate that to determine when a criminal case begins, one must first answer another question: Who is capable of violating the Self-Incrimination Clause? As Professor Rosenkranz has shown, attention to constitutional actors—the Constitution’s “subjects”—is the key to unraveling much doctrinal confusion. A close analysis of the text of the Self-Incrimination Clause as originally enacted9 and the Constitution it amended will show that the Clause was directed at federal judges. The Clause gives the judiciary the duty and the authority to prevent bad executive acts—compelling a confession by torture or other improper means— from coming to fruition in a court of law. In that way, the Clause puts a check on executive actors, preventing collusion with and domination over the federal judiciary.

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