NCJ Number
79770
Journal
Marguette Law Review Volume: 64 Issue: 2 Dated: (Winter 1980) Pages: 243-276
Date Published
1980
Length
34 pages
Annotation
This article explores judicial decisions on the scope of the fifth amendment privilege against self-incrimination and discusses privilege problems that arise in Federal civil litigation.
Abstract
Because the privilege against self-incrimination can be asserted in any type of proceeding, it can threaten the quality of access to sources of proof in Federal civil lawsuits. Privilege developed in English law in opposition to religious and political abuses, and subsequent rationales have contended that it prevents inhumane treatment, preserves individual privacy, and establishes a fair method for conducting criminal trials. A summary of Supreme Court decisions in Hoffman v. United States and Brown v. United States illustrates the Court's conviction that privilege should be accorded a liberal construction. Judicial decisions which have placed limitations on the assertion of privilege are then presented. For example, State prosecutors are forbidden to comment on the accused's failure to testify in his own defense and statements produced by coerced waivers are unconstitutional in a criminal trial. Also examined are Supreme Court decisions which addressed conflicts between fourth amendment rights, such as prisoners' claims for relief from prior guilty pleas, and the privilege against self-incrimination. An analysis of the impact of these rulings on civil proceedings first considers United States v. Kordel, which demonstrated that the fifth amendment privilege does not bar the pursuit of civil remedies against an individual when he is under the shadow of a potential criminal action. Another Supreme Court decision concerning a prison disciplinary hearing, Palmigiano v. Baxter, found that the silence of a party to a civil proceeding may be given some evidentiary weight as warranted by the facts without penalizing the defendant for asserting the privilege. Distinctions between plaintiffs and defendants and the inability of an artificial legal entity to assert the privilege against self-incrimination often cause problems in civil litigation. A review of decisions in this area concludes that narrow interpretations of the fifth amendment may distort basic legal issues. Finally, approaches to reconcile due process rights with the fifth amendment privilege are proposed. The article includes 177 footnotes.