Fifth Amendment: No Longer a Shield Against Government

The Fifth Amendment right against self-incrimination is not what it used to be--as Sen. Bob Packwood (R-Ore.) and others have learned.

Since 1975, the U.S. Supreme Court has made clear that a person suspected of having committed a crime can be forced to turn over all manner of incriminating evidence: fingerprints, hair samples, business records, a desk calendar and even the pages of a private diary. That is so because in the last two decades, the high court has shrunk the Fifth Amendment to the narrow meaning of its words.

Although it is regularly referred to as the right against self-incrimination, the Fifth Amendment actually says: “No person . . . shall be compelled in any criminal case to be witness against himself.”

As such, the amendment does not “serve as a general protector of privacy,” the high court has said. Rather, it only “protects against compelled testimony, not the disclosure of the private information.”

Based on that view, the justices have rejected claims from taxpayers and corporate officials who resisted turning over their private records.

Relying on the same narrow view, U.S. Judge Thomas Penfield Jackson last week squarely rejected Packwood’s claim that he has a Fifth Amendment right to refuse to turn over his private diary. The Senate Ethics Committee subpoenaed the diary as part of its investigation of charges that Packwood sexually harassed several female employees.

BACKGROUND: Before 1975, the Fifth Amendment stood as one barrier to government intrusion into a person’s private life, including his or her personal papers. Then, the high court regularly invoked the amendment as forbidding “the compelled production of personal papers and effects.”

“It is abhorrent to the instincts of an American,” the court said in the 1886 case of Boyd vs. U.S., that prosecutors may seek to convict someone of a crime “by compelling the production of his private books and papers. . . . It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and freedom.”

But that strict standard was whittled away in a series of tax and business cases. While taxpayers may have thought their records were private, officials of the Internal Revenue Service thought otherwise.

By 1975, the high court majority suggested the 19th-Century view of the Fifth Amendment was outdated.

“Several of Boyd’s declarations . . . have not stood the test of time,” Justice Byron White wrote. If a government’s demand “does not compel oral testimony,” it does not violate the Fifth Amendment, he added.

In 1984, the court revisited the issue, and Justice Sandra Day O’Connor concluded that “The Fifth Amendment provides absolutely no protection for the contents of private papers of any kind.”

Of course, the Fourth Amendment also limits “unreasonable searches and seizures,” but that privilege is voided whenever investigators have probable cause to believe a crime has been committed.

OUTCOME: Most judges and legal experts now say that the Fifth Amendment’s shield against self-incrimination is quite limited.

But Paul Rothstein, law professor at Georgetown University, adds a cautionary note: The Supreme Court has not officially ruled that a purely private diary can be subpoenaed.

“They could still say that something as intimate as a diary is like a dialogue with yourself and should be protected on that basis,” he said of the justices.

But the high court’s recent action has renewed speculation that the issue is already settled.

Last week, lawyers for a New York stockbroker under investigation appealed a ruling requiring him to turn over a notebook he carried around in his breast pocket. It included social engagements and notes for a private diary. The “private contents of a personal document” should be protected from disclosure, the lawyers argued.

However, without a dissent, the high court refused to hear his appeal.