Document Type

Working Paper

Publication Date

4-14-2005

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; LSN Subject Matter eJournals

Abstract

The relationship between the Fourth Amendments prohibition of unreasonable searches and seizures and the Fifth Amendments prohibition of compelled selfincrimination has engendered a history wrought with doctrinal confusion and theoretical disarray which current doctrine has only exacerbated The lack of a proper theoretical understanding of this relationship has allowed a particular type of entanglement to occur whereby the concerns concepts or rationales from one amendment become transposed into the doctrine of the other and consequently problems proper to one amendment are mistakenly analyzed under the other In this Article I offer a general theory of the relationship between the amendments that attempts to disentangle the doctrine and straighten out the analytic disarray Part I discusses methodology My approach is a middle way between the two dominant methods for constitutional theorizing in this area topdown normative and bottomup descriptive Section II describes the core features of the doctrine for each amendment Section III after first discussing the shortcomings of alternative views presents my view of the relationship between the two amendments Incorporating the core features described in Section II I argue for a view of the amendments as overlapping in the sense that potential Fifth Amendment events may arise within potential Fourth Amendment events Accordingly courts should subject government attempts at evidence gathering to a twopart inquiry first does the Fourth Amendment render the attempt unreasonable second if not unreasonable under the first inquiry would the attempt compel incriminating propositional content from the mind of a suspect in order to use it against that suspect at a criminal trial If the answer to the second inquiry is yes then the privilege applies Part IV then employs this twostep inquiry to solve doctrinal problems regarding the governments subpoena power stopandidentify statutes and the use of prearrest silence as evidence of guilt

Download

Share

COinS