Fifth Amendment Flashcards
Fifth Amendment
No person…shall be compelled in any criminal case to be a witness against himself.
Justifications for the 5th Amendment
- Protect the innocent
- Protect against the cruel trilemma
- Deter perjury
- Protection against unreliable coerced statements
- Maintain the accusatorial system
- Deter improper police practices
- Maintain the State-Individual power balance
- Morality
- Protect the right to privacy
- Protect the first amendment
Protect the Innocent
The 5th amendment protects innocent people from being convicted just because they perform poorly on the witness stand.
Protect against the cruel trilemma
The 5th amendment protects people from being put in a position where their either have to 1. incriminate themselves 2. lie/perjure themselves or 3. be held in contempt of court for refusing to speak.
Deter perjury
The 5th amendment protects people from being compelled to speak, reducing overwhelming perjury.
Protect against unreliable coerced statements
Self-incriminating statements that are coerced are inherently untrustworthy. We need the 5th amendment to protect against this.
Maintain the Accusatorial System
The 5th amendment helps ensure that the criminal legal system remains accusatorial rather than inquisitorial.
Deter Improper Police Practices
The 5th amendment disincentivizes the police from using coercive tactics, like torture, to elicit incriminating statement.
Maintain the State-Individual Power Balance
The 5th amendment helps ensure that the police leave the individual alone until they have uncovered enough information to possibly meet their burden of proof and indict them.
Morality
The 5th amendment helps prevent the criminal legal system from being an immoral one that regularly relies on coerced, incriminating statements for proof.
Protect the Right to Privacy
The 5th amendment helps maintain individual privacy. No one can be forced to disclose incriminating personal information.
Protect the First Amendment
The 5th amendment helps prevent the government from coercing statements from people about their political and religious beliefs.
Can your silence be used against you?
Yes. If you want to invoke the 5th amendment, you have to speak up and say so. Otherwise your silence can be used as evidence of your guilt.
What is the scope of the 5th amendment?
- There has to be compulsion
- The incriminating evidence must be testimonial
- The statement must be incriminating (i.e. able to be used against you in a criminal case)
