To "plead the fifth" on something-to refuse to answer, so as not to incriminate oneself-is viewed as a sign of guilt in the popular imagination, but viewing it as a sign of guilt in a court of law, or in a police interrogation room, is toxic and dangerous. For our system to produce confessions that are worth using, it must weed out those confessions that say more about the intentions of law enforcement personnel and prosecutors than they do about the guilt of the suspect.01of 03
Chambers v. Florida (1940)Rich Legg/Getty Images
The circumstances surrounding the Chambers case were, sadly, not unusual by the standards of the mid-twentieth-century South: a group of black defendants had given a "voluntary" confession under duress and were being railroaded into a death sentence. The U.S. Supreme Court, represented in this majority opinion by Justice Hugo Black, did what it so often did during the early civil rights era and established basic due process protections for black defendants that states had been previously unwilling to recognize:
For five days, petitioners were subjected to interrogations culminating in Saturday's (May 20th) all-night examination. Over a period of five days, they steadily refused to confess, and disclaimed any guilt. The very circumstances surrounding their confinement and their questioning, without an formal charges having been brought, were such as to fill petitioners with terror and frightful misgivings. Some were practical strangers in the community; three were arrested in a one-room farm tenant house which was their home; the haunting fear of mob violence was around them in an atmosphere charged with excitement and public indignation…
We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws. The Constitution proscribes such lawless means irrespective of the end. And this argument flouts the basic principle that all people must stand on an equality before the bar of justice in every American court. Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution-of whatever race, creed or persuasion.
The case gave force to the basic prohibition on self-incrimination by applying it at a state level by way of the incorporation doctrine, thereby making it relevant to the situations where it was most likely to be violated.02of 03
Ashcraft v. Tennessee (1944)
Justice Black affirmed, in Ashcraft, that merely not torturing a suspect wasn't enough to ensure that involuntary self-incrimination had not taken place. The use of solitary confinement and indefinite imprisonment to generate false confessions, like the use of coerced confession, did not pass constitutional muster:
It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross-examination for thirty-six hours without rest or sleep in an effort to extract a "voluntary" confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open courtroom.
The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.
This left law enforcement authorities with the option of misleading suspects into self-incrimination, however-a loophole that the U.S. Supreme Court did not close for another 22 years.03of 03
Miranda v. Arizona (1966)
We owe the existence of the "Miranda warning"-beginning "You have the right to remain silent… "-to this Supreme Court ruling, in which a suspect who did not know his rights incriminated himself on the assumption that he had fewer options than he did. Chief Justice Earl Warren outlined what law enforcement personnel must do to advise suspects of their rights:
The Fifth Amendment privilege is so fundamental to our system of constitutional rule, and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clear-cut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system -- that he is not in the presence of persons acting solely in his interest.
Still controversial today, the Miranda warning-and the basic principle of the Fifth Amendment's prohibition on self-incrimination-is a fundamental element of due process. Without it, our criminal justice system becomes remarkably easy to manipulate and dangerous to the lives of ordinary citizens.