We worship the 1st, fight for the 4th, but mock the 5th?!?

This morning, I opened my weekly Google alerts and saw this: What’s This Man Hiding? Councilman Leland Takes the Fifth in Deposition. It begs the question: why do we as a society worship the 1st, fight for the 4th, but mock the 5th?!?

No person shall be compelled in any criminal case to be a witness against himself.

That language comes from the same bill of rights as the:

  • 1st Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”
  • 4th Amendment: “No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”

Yet, we seldom—if ever—give it the same respect. When is the last time you heard a good word about the 5th? Now compare that to the 1st and 4th.

And we forget that the 5th is more than just the right against self-incrimination:

  • Guarantees the right to a grand jury,
  • Forbids double jeopardy,
  • Requires due process of law in any proceeding that denies a citizen life, liberty or property, and
  • Requires the government to compensate citizens when it takes private property for public use.

The right to be free from self-incrimination was not written into the bill of rights by accident. The founding fathers included it because of the belief that coerced confessions were inherently unreliable.

Back in the day, English courts required those accused of heresy to swear before God to truthfully answer all questions asked of them (“oath ex officio”). In doing so, it created a “cruel trilemma” where the accused would find themselves trapped with three options:

  1. Refuse to take the oath, which constituted contempt and subjected the person to torture;
  2. Take the oath and tell the truth about their religious beliefs, which, if heretical, was punishable by death; or
  3. Take the oath and lie, which was also punishable by death.

Not surprisingly, this practice led to coerced confessions. The English courts eventually realized this and, by the late 18th century, got rid of the “oath ex officio.”

Fast forward to after the revolutionary war: at least six states prohibited compulsory self-incrimination (e.g., in 1776, Virginia’s declaration of rights included that a man cannot be compelled to give evidence against himself). The bill of rights soon followed and, in them, James Madison penned those magic words: “No person shall be compelled in any criminal case to be a witness against himself.”

Despite the 5th’s deep roots, our society continues to view taking the 5th with disdain. To many, it’s a technicality or a loop hole only used by those hiding their guilt. But, when asked about the 1st or 4th, we are quick to defend them. Why the disparity? Simple: because we haven’t had a reason to use it yet.

Case in point: ask any of my clients (even the innocent ones) what they think of their right against self-incrimination.

Too often, we forget that the right to be free from self-incrimination is a protection our founding fathers decided so indispensable they included it in the bill of rights—right alongside the 1st and 4th.

Let’s give it the respect it deserves.