The Fifth Amendment at Justice: A Reply
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Description
Mr. Markman's response to “Reconsidering Miranda” misses the article's central point, which was to offer a theory of fifth amendment compulsion and to consider the legitimacy of Miranda within the framework of that theory. While Markman offers no affirmative theory of what compulsion means, we can learn a good deal from his discussion of what compulsion does not mean. One theory, that compulsion requires a formal obligation backed by sanctions, was a mainstay of pre-Miranda arguments that the privilege against self-incrimination was irrelevant to police interrogation. Markman agrees with me that Miranda's rejection of this theory was “obviously correct.” Another candidate is the theory that compulsion requires “physical violence or other deliberate means calculated to break the suspect's will.” Again Markman agrees that my rejection of this view is "obviously correct.” Why, then, does Markman challenge the view of compulsion offered in Miranda and in my article? The historical materials cannot bear the weight Markman places upon them. He emphasizes that preliminary examinations of suspects had been “a basic feature of criminal procedure [since the sixteenth century] and remained so until the mid-nineteenth century.” But his own sources stress that the preliminary examination of the sixteenth and seventeenth centuries relied upon compulsory process and often upon torture. The existence of such practices casts no doubt on my claim that the fifth amendment was intended to prohibit “pretrial examination by magistrates . . . under formal process” or other compulsion. Moreover, mid-nineteenth-century willingness to tolerate “aggressive” interrogation, with no warnings and no right to avoid questioning, is not helpful in interpreting the intended content of fifth amendment “compulsion.” Turning again to Markman's own sources, we find that such practices were either perceived as contrary to the privilege or were reconciled with it on the sole ground (properly rejected by Markman) that compulsion required a formal obligation to respond.
Source Publication
A Criminal Procedure Anthology
Source Editors/Authors
Silas J. Wasserstrom, Christie L. Snyder
Publication Date
1996
Recommended Citation
Schulhofer, Stephen J., "The Fifth Amendment at Justice: A Reply" (1996). Faculty Chapters. 1397.
https://gretchen.law.nyu.edu/fac-chapt/1397
