B.2(r). Protection from Self-Incrimination

A person may not be compelled to speak or testify against themselves.

One of the most well-known and fundamental rights under the Constitution of 1789 is the Fifth Amendment right protecting against self-incrimination.[1] Most Americans believe this right is absolute. It has been steadily weakened by courts.[2] This sentence serves to restate that right for this Charter.

This protection applies in all settings where the Government may compel testimony, including criminal, civil, administrative, and legislative proceedings.

Under current precedent, complete protection against self-incrimination only applies in criminal proceedings.[3] Other forums offer varying degrees of protection. This provision makes constitutional that protection extends to all compelled testimony equally.

A Person is not required to state that they are invoking this Right, and no adverse inference may be drawn from their silence.

In Salinas v. Texas (2013), the Supreme Court ruled that prosecutors could use a defendant’s silence against them at trial because he hadn’t explicitly invoked it.[4] Three years earlier, in Berghuis v. Thompkins (2010), the court held Miranda Rights are not invoked by the simple act of silence; they must be “unambiguously” invoked.[5] Effectively, the courts have created a legal trap requiring people to know the legal magic passphrase to invoke rights they already have.

Refusal to provide records following a subpoena is not automatically protected. Such activity is the normal gathering of evidence, but it requires the same warrant and probable cause as any other search or seizure.

This provision upholds the “required records” doctrine,[6] but restates the requirement for warrants and probable cause called for in Art. I, §B.2(k) of this Charter.

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[1] U.S. Const. amend. V.

[2] See Baxter v. Palmigiano, 425 U.S. 308 (1976); Allen v. Illinois, 478 U.S. 364 (1986); McKune v. Lile, 536 U.S. 24 (2002); Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177 (2004).

[3] In Allen, the court found that civil commitment proceedings don’t require full Fifth Amendment protections because they are not criminal. Nonetheless, civil commitment proceedings can be used to deprive a person of their liberty. In Baxter, the Supreme Court ruled that, in civil proceedings, an opinion can be inferred based solely on silence. This renders the right more of a privilege, extended at the whim of the Court, when it deems the right applies.

[4] Salinas v. Texas, 570 U.S. 178 (2013).

[5] Berghuis v. Thompkins, 560 U.S. 370 (2010).

[6] See Shapiro v. United States, 335 U.S. 1 (1948) and Baltimore City DSS v. Bouknight, 493 U.S. 549 (1990).