Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11. .
Is There a Right to Remain Silent?
Alan M. Dershowitz
Oxford University Press
232 pp., $19.95
In his most recent book, Is There a Right to Remain Silent? Coercive Interrogation interrogation
In criminal law, process of formally and systematically questioning a suspect in order to elicit incriminating responses. The process is largely outside the governance of law, though in the U.S. and the Fifth Amendment after 9/11, Harvard Law professor Alan Dershowitz Alan Morton Dershowitz (born September 1, 1938) is an American lawyer and criminal law professor known for his extensive published works, career as an attorney in several high-profile law cases, and commentary on the Arab-Israeli conflict. in his classic provocative style--challenges the reader to rethink the protections of the Fifth Amendment. He makes a strong case that as the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. moves to a "preventive state" model in the post-9/11 world, the protection against coerced confessions is more necessary than at any time. He also demonstrates the danger of allowing substantive rights "Substantive rights," are basic human rights possessed by people in an ordered society and includes rights granted by natural law as well as the substantive law. Substantive rights involve a right to the substance of being human (life, liberty, happiness), rather than a right to a to be undermined by public acceptance of government actions designed to prevent crime and terrorism.
In 2003, the U.S. Supreme Court decided the case of Chavez v. Martinez. Oliverio Martinez had been shot in the face, blinded, and nearly killed in an altercation with police officers. While he was at the hospital, the police quesioned him to extract a confession A Confession is a short work on questions of religion by Leo Tolstoy. It was first distributed in Russia in 1882.
Consisting of autobiographical notes on the development of the author's belief, A Confession that he had drawn a weapon against the officers.
Martinez's lawsuit alleging violation of his constitutional rights ultimately came before the Supreme Court. The justices questioned whether police coercion alone, without subsequent use of the fruits of such coercion against the suspect in a criminal case, violated the Fifth Amendment. The Court determined that as long as the confession was not used in a criminal trial, police coercion did not violate the Fifth Amendment protection against serf-incrimination.
Dershowitz uses Chavez to analyze whether the popular phrase "you have the right to remain silent" is true. If the Fifth Amendment does not provide a criminal suspect in police custody with a substantive right to remain silent, then what are the limits of the protection against self-incrimination? More important, how far can government actors go in obtaining information through involuntary questioning, coercive techniques, or even torture?
Reading this book is reminiscent of sitting in a law school class and debating the different models of constitutional interpretation and judicial decision-making. Dershowitz is at his best when forcing the reader to think critically about the limits of, and the need for, the right to remain silent. As he asks in the book, "Does the Fifth Amendment provide a primary right to remain silent or only a secondary right to a particular remedy--namely, exclusion of coerced statements?"
Dershowitz concludes that if the only protection provided is a criminal trial remedy, then the Constitution provides no right to remain silent. He makes a strong case that Chavez has provided a clear precedential prec·e·den·tial
1. Of, relating to, or constituting a precedent.
2. Having precedence.
Adj. 1. precedential pathway for determining that the right to remain silent does not prevent coercive interrogations by government officials. With such a narrow interpretation, the Fifth Amendment loses the force to prevent coercive questioning and becomes irrelevant to the debate on torture.
After getting the reader's attention with the potential ramifications ramifications npl → Auswirkungen pl of the Supreme Court's interpretation of the right to remain silent under the Fifth Amendment, Dershowitz details the need for a constitutional interpretation model that employs a broad reading and expansive interpretation of all constitutional rights. He describes how the justices writing the opinions in the Chavez case pick and choose which model of constitutional interpretation to employ based on the intended result. His analysis is unsettling un·set·tle
v. un·set·tled, un·set·tling, un·set·tles
1. To displace from a settled condition; disrupt.
2. To make uneasy; disturb.
v.intr. and demonstrates how the "canons of interpretation" are susceptible to selective use.
Dershowitz challenges the reader to reexamine re·ex·am·ine also re-ex·am·ine
tr.v. re·ex·am·ined, re·ex·am·in·ing, re·ex·am·ines
1. To examine again or anew; review.
2. Law To question (a witness) again after cross-examination. his or her basic view of how the Constitution protects the rights of all citizens. The book argues that slowly and methodically minimizing the rights of the criminally accused poses a threat to the constitutional rights that all Americans consider sacrosanct sac·ro·sanct
Regarded as sacred and inviolable.
[Latin sacrs .
Although at times the book borders on an overly academic discussion, it provides thought-provoking insight on constitutional interpretation, judicial decision-making, and government accountability. Certainly, these are subjects important to everyone, but they are critical to trial lawyers.
LEE HUNT practices law in Santa Fe, New Mexico Santa Fe, more properly Santa Fé, (pronounced [ˈsænə feɪ] by natives, [ˌsænə ˈfeɪ] .