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  Taking the Fifth: The Supreme Court and the Privilege against Self-Incrimination

  Mark Berger

  Consistently, through many centuries, the right to remain silent has protected individuals against abuses of state authority and has established a sphere of privacy into which the state could not intrude. Traditionally, a broad view has been taken by the supreme court of the degree of incrimination necessary to justify invocation of the fifth amendment. Included have been complete confessions of guilt and admissions of the essential elements of crime. Also covered are relations constituting a 'link in the chain of testimony' leading toward a conviction. Similarly, testimony that could be used to 'search out other testimony to be used in evidence' is covered by the privilege. The practical effect of the incrimination standard is to make rejection of a claim of privilege difficult, thereby frustrating the state's ability to acquire information. In recent years, however, with the exception of the core fifth amendment right of the defendant to refuse to take the witness stand at his/her own trial, privilege interests are narrowly construed and substantially undercut even where recognized. To reverse the trend toward the constriction of the privilege against self-incrimination, a thorough re-evaluation of the entire body of fifth amendment doctrine is necessary. This re-evaluation should examine protection of the sanctity of documents, consider procedural reform in the administration of the privilege against self-incrimination, and examine a total revamping of the court's approach to balancing the state's interests in the application of the fifth amendment. Notes, a bibliography, a table of cases, and an index are provided.