Abstract
The Fifth Amendment to the United States Constitution prevents citizens from being compelled to serve as witnesses against themselves in any criminal case. This constitutional privilege is fundamental to an individual's liberty and has even been noted by the United States Supreme Court as our most important privilege. However, as a result of a shift in Fifth Amendment jurisprudence in the early nineteenth century, many legal scholars have posited that this formerly broad privilege is being whittled down to naught. Some have even theorized that new technology may render the privilege non-existent. Unfortunately for lawyers, judges, and criminal defendants, Fifth Amendment jurisprudence is also very difficult to navigate and often applied inconsistently. One article even found that two courts reached entirely different results applying the same legal doctrine to a similar set of facts. This Note will attempt to lay out some of the reasons for the problems with the doctrine, highlight its inability to be adapted in an increasingly digital age, and propose a revival of the privacy rationale alluded to in Boyd v. United States and advanced by many other legal scholars.
Recommended Citation
Abe Andrew Bailey,
Privacy, Privilege, and Protection: A Case for Fifth Amendment Expansion,
29 U. Fla. J.L. & Pub. Pol'y
167
(2019).
Available at: https://scholarship.law.ufl.edu/jlpp/vol29/iss2/11