Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date





Boston University School of Law




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

Find on SSRN

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.