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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

2017

ISSN

0006-8047

Publisher

Boston University School of Law

Language

en-US

Abstract

The right guaranteed by the Fifth Am endment’s Self-Incrimination Clause appears straightforward: no person “shall be compelled in any criminal case to be a witness against himself.” 2 Despite its basic terms, historical pedigree, and well-known status as a constitutional right, the public’s understanding of what is protected by the Fifth Amendment is often ill informed, and even sophisticated lawyers are not always capable of explai ning the scope and application of the right. 3 Indeed, supporters of the right not “to be a witness against [one]self” 4 have not been particularly adept at explaining why America needs the Fifth Amendment. 5 This uncertainty about the scope of the privilege, as well as the inability to persuasively defend it, may be due to the fact that many Americans do not consider the Fifth Amendment one of the “respectable freedoms”—like the right to freedom of sp eech or freedom of religion. 6 Too many people associate the Fifth Amendment with criminals, and believe that only guilty individuals invoke the Fifth. 7

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