Fifth Amendment– King John to Bridgegate

If the New Jersey Courts rule in favor of the Bridgegate witnesses on their motion to quash the subpoena of the legislative committee investigating their activities, they can thank King John of England.

While it was James Madison who first introduced the Fifth Amendment at the Constitutional Convention, he took the concept from the Magna Carta. Popularized by the legend of Robin Hood, it was the purported arbitrariness of King John of England that forced the absolute monarch to give up some of his powers in 1215 when his nobles forced him to sign the Magna Carta.

The Magna Carta created a colorable right for nobles to have legal counsel and avoid self incrimination; but the English Kings after King John didn’t always honor those concepts.  It wasn’t until the 17th Century that the right against self incrimination became firmly rooted in English law.

When the Puritans were interrogated about their religious affiliation, their right to refuse to answer the question became the legal issue of the day. In the 17th century, if a Puritan admitted to his religion, they bore the full weight of English law against them. If they denied their religious beliefs, they bore the full weight of eternal damnation against them.  If they refused to answer the question, they were considered guilty for refusing to answer.

As a result of the unintended consequences of a presumption of guilt for refusing to answer a question, Parliament officially granted English citizens the right against self-incrimination. After settling in America, the Puritans continued to advance the notion until it became part of our own Bill of Rights.

Over time, the Fifth Amendment has been expanded to mean much more than the simple phrase: “[No person]…shall be compelled in any criminal case to be a witness against himself…”  In fact, the Supreme Court has a complex body of law devoted exclusively to the parameters of the privilege.

In Miranda v. Arizona, the justices clearly articulated the steps that law enforcement officers must take to advise suspects of their rights, most notably the right to remain silent. More recently, in Ohio v. Reiner, clarified that juries cannot be asked to draw an inference of guilt from a defendant’s refusal to testify in his own defense.  As explained by the Court, “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”

The Fifth Amendment will again take center stage later this month when a New Jersey court will decide whether Bridget Anne Kelly and William Stepien will have to turn over documents to the special legislative committee investigating Bridgegate.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

  Fifth Amendment– King John to Bridgegate