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University of Pennsylvania Journal of Constitutional Law (2017)
  • Lawrence Rosenthal
The lack of a definition of compulsion plagues Fifth Amendment jurisprudence and scholarship, producing analytical confusion and worse. Surprisingly, neither Fifth Amendment jurisprudence nor scholarship offers a definition of what it means to “compel” a person to self-incriminate, even though there the concept of compulsion is critical to an understanding of the constitutional prohibition on compelled self-incrimination. The Supreme Court has occasionally referred to an overborne-will test for compulsion, but that test is of dubious provenance and difficult to apply. The Court frequently ignores the overborne-will test, and it cannot be reconciled with a good deal of Fifth Amendment doctrine. 

Starting with the paradigm of compulsion that gave rise to the Fifth Amendment, this article offers a definition of compulsion that can be defended on both originalist and nonoriginalist grounds: An official undertaking to induce a witness to provide evidence by threat of punitive sanctions. This definition explains large swaths of Fifth Amendment doctrine that courts and commentators alike find confusing or indefensible, and facilitates normative assessments of doctrine as well. It also charts a course for future development of Fifth Amendment law. The definition of compulsion, for example, suggests that Fifth Amendment protections apply whenever a suspect is confronted with a threat of punitive sanctions unless he submits to questioning, and debate over the propriety of asserted Fifth Amendment waivers and associated interrogation tactics should focus on whether the suspect is confronted with a threat of punitive sanctions beyond those that could be imposed as a result of conviction at a fair trial. Defining compulsion, moreover, illustrates the manner in which the Fifth Amendment limits inquisitorialism in the criminal process.
  • Fifth Amendment,
  • Self-Incrimination,
  • Miranda v. Arizona,
  • Griffin v. California,
  • Salinas v. Texas
Publication Date
Citation Information
Lawrence Rosenthal, Compulsion, 19 U. Pa. J. Const. L. 889 (2017).