You Have the Right to Remain Innocent

by James J. Duane

The Department of Justice has now served official notice that it believes the courts should allow a prosecutor to argue under any circumstances that your willingness to assert the Fifth Amendment privilege can and should be used against you as evidence of your guilt. It is too soon to know whether all of the federal courts will yet go along with that radical suggestion, but at least one circuit of the United States Court of Appeals has already done so, and the grave danger is that others will follow suit. What does this mean for the liberty of ordinary American citizens? The implication is as obvious as it is shocking. In light of the ongoing war now being waged against the Fifth Amendment by the federal courts and the Department of Justice, the precious constitutional privilege against self-incrimination is no less important than in the past, but it has now become “the constitutional privilege that dare not speak its name.”