Do You Really Have the Right to Remain Silent?
A new book by Alan M. Dershowitz, “Is There a Right to Remain Silent?”, raises an extremely interesting question about how far Fifth Amendment protections go in post-9/11 America.
The Supreme Court ruled in Chavez v. Martinez that the Fifth Amendment does not prohibit law enforcement officials from torturing an individual to prevent a future crime, such as terrorism.
In Chavez v. Martinez, a police coercion case from 2003, the Supreme Court justices ruled that an individual’s right to remain silent is not violated if the information is not used against that person in a criminal case. The fact that they have been coerced into talking, in itself, does not constitute a violation of the Fifth Amendment right to remain silent.
This, in most simple terms, means that the government pretty much has the green light to torture prisoners.
During an altercation with police, Oliverio Martinez was shot several times on a street in Southern California. While he was being transported to the hospital and in the emergency room at the hospital, an officer questioned him about the incident.
Martinez responded with the statements “I am choking,” “I am dying,” and “I am not telling you anything until they treat me.”
According to a report by the New York Times, the officer continued to question Martinez until he admitted that he had taken a gun from one of the officers and pointed it at them.
Martinez was left blind and partially paralyzed after the incident. He filed a lawsuit against the officer who had interrogated him, claiming that his Fifth Amendment rights had been violated.
The case made its way to the Supreme Court, where six different opinions were issued.
In Dershowitz’s book, he focuses on the opinion of Justice Clarence Thomas. Thomas concluded that Martinez’s constitutional right against self-incrimination, as guaranteed by the Fifth Amendment, had not been violated because none of his statements were used against him in a criminal trial.
Dershowitz points out in the book that the language of the Fifth Amendment does not specifically create a right to remain silent. The Fifth Amendment simply protects against a person being compelled to be a witness against themselves. However, he attacks Thomas’ opinion as being overly narrow and literal and accuses him of ignoring case law that may be inconvenient to the case, as well as historical record.
In “Is There a Right to Remain Silent?”, Dershowitz looks back at the origins of the Fifth Amendment’s protection against self-incrimination, which may be rooted in the church’s use of inquisitorial oaths against political and religious dissidents in 13th-century England. The book also examines some relevant precedents and the evolution of our understanding of the Fifth Amendment since its passage.
While case law may be contradictory regarding the Fifth Amendment and the actual right to remain silent, the decision in Chavez v. Martinez shows that a careful and literal reading of the law reveals that there is not an explicit right to remain silent, but only a right against self-incrimination.