U.S. Fifth Amendment: Shield for the Innocent--or Guilty?

WASHINGTON — “Taking the Fifth,” the colloquial term for invoking a constitutional right used by everyone from suspected gangsters to McCarthy-era college professors and government bureaucrats, has a colorful history that stretches back to the 15th Century, when witnesses in the English Star Chamber faced torture if they refused to talk.

The Fifth Amendment to the U.S. Constitution--invoked on Capitol Hill this week by two former White House aides being questioned in the Iran-arms scandal--guarantees that a person “shall not be compelled in any criminal case to be a witness against himself.”

This is popularly known as the right to remain silent, or protection against self-incrimination. Historians believe the Founding Fathers included it in the Bill of Rights for the sake of fairness.

Despite the fairness rationale for the provision against forced self-incrimination, critics say the Fifth Amendment has been abused--both by investigators who wish to stigmatize witnesses by forcing them to invoke it, and by guilty persons who are able to hide behind its shield too easily.

The most vehement protests erupted in the wake of the Supreme Court’s so-called Miranda ruling of 1966, which extended the protection to require police to advise a suspect of the right to remain silent and to have legal representation before being questioned.

Gerald M. Caplan, a law professor at George Washington University, said that “the Fifth Amendment has always been somewhat hard to swallow”--especially the claim that innocent people sometimes use it to avoid wrongful conviction. He said studies have shown that the dissenters who were tortured into confessing in the Star Chamber trials several centuries ago “were all guilty. There is no question they were plotting sedition.

“The affront of the Star Chamber,” he added, “was the methods used, not that they got the wrong parties.”

Defenders of the Fifth, on the other hand, argue that its use does not necessarily imply guilt. During the McCarthy era of the 1950s, when congressional committees tarred many American academics and others with ill-supported charges that they were Communist dupes or sympathizers, witnesses often invoked the Fifth Amendment as the only way to avoid giving testimony that could be used against friends or colleagues.