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Article contents
The Right not to Incriminate Oneself
Published online by Cambridge University Press: 13 January 2009
Extract
The Fifth Amendment to the Constitution of the United States contains the following words: “No person… shall be compelled in any criminal case to be a witness against himself.” In laying down this restriction on what government may do, the Constitution creates a legal right: the right to be free from coercion by any organ of government to testify against oneself – to incriminate oneself.
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- Copyright © Social Philosophy and Policy Foundation 1984
References
1 In my Theory of Morality (Chicago: University of Chicago Press, 1977), I have developd the conception of morality here outlined.
2 St. Thomas Aquinas, Summa Theologiae, III, 90, 3 c.
3 Ibid., II–II, 62, 6 ad 2.
4 Ibid., II–II, 62, 6 obj. 2.
5 Ibid., II–II, 69, 3 c.
6 Jeremy Bentham, Rationale of Judicial Evidence, (London: Hunt and Clarke 1827). In five volumes.
7 Jeremy Bentham, Rationale of Judicial Evidence, vol. 4, 480. Bentham did, indeed, allow the exclusion of irrelevant evidence; but he maintained that the mischief of hearing such evidence ‘is resolvable in toto into the mischief producible by vexation, expense, and delay’ (ibid., 571). Of the special case of excluding evidence by priests about sacramental confessions, Bentham remarked: ‘The advantage gained [by coercing priests to give such evidence] in the shape of assistance to justice, would be casual, and even rare; the mischief produced by it, constant and all-extensive’ (ibis., 589).
8 Bentham, Rationale of Judicial Evidence, vol. 5, 743.
9 Ibid., 229.
10 Ibid., 230.
11 Ibid., 238–39.
12 Ibid., 240.
13 Ibid., 241.
14 Ibid., 240.
15 Ibid., 258.
16 Leonard W. Levy has explored the complex practical considerations by which the prohibition of compelling self-incrimination has been justified in his Levy, Leonard W.Origins of the Fifth Amendment (New York: Oxford University Press, 1968).Google Scholar I owe this reference to David Luban.
17 Bentham, Rationale of Judicial Evidence, vol. 5, 230–31.
18 Levy, Origins of the Fifth Amendment, 24. I owe this particular reference also to David Luban.
19 David Luban, ‘Corporate Counsel and Confidentiality,’ typescript, Center for Philosophy and Public Policy and University of Maryland School of Law (1981), 34–35. (This paper is forthcoming in a volume edited by Frederick Elliston, Whistleblowing: Conflicting Loyalties in the Workplace).
20 Bentham, Rationale of Judicial Evidence, vol. 5, 234.
21 I have explored this matter further in ‘Justifying Legal Practice in the Adversary System,’ typescript prepared for the Maryland Center for Philosophy and Public Policy Working Group of Legal Ethics (1981), publication forthcoming.
22 Of the various valuable comments made at the Conference on my working draft, for which I desire to express my gratitude, those that have made most difference to this revision were by Alan Gewirth, Alan Gibbard, and Steven O. Ludd.
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