THE FIRSTHAND THEORY: AN UPDATED RATIONALE FOR THE
PRIVILEGE AGAINST SELF-INCRIMINATION
Jordan Wallace-Wolf*
ABSTRACT
A debate has raged for decades, or even centuries by some measures, about
the justification for the Fifth Amendment privilege against self-incrimination.
Why have it? Some think it protects a deep-seated moral interest in silence,
whereas others think it is, at most, a means of promoting an effective or
restrained criminal system.
Neither camp has made progress, and in the late 2000s, many came to believe
it was futile to seek an overarching justification for the privilege. This paper
seeks to unsettle that belief by showing that the debate about the privilege was
never as stagnant as it seemed. More importantly, it seeks to push the debate for-
ward with an upgraded argument.
Specifically, I argue that the privilege against self-incrimination protects a dis-
tinct aspect of a person’s mental privacy. This general idea has steadily devel-
oped to meet various objections over its lifetime, but its current elaboration is
still problematic. It can be further improved by understanding the role of memory
in developing and sustaining personhood and the value of shielding its operation
from the ideology of the community, even when the latter is eminently justified.
Persons have a moral interest (and a First Amendment interest) in developing a
conception of themselves firsthand through unmediated cognitive contact with
the circumstances of their lives. One urgent instance of this interest—what I call
the “interest in firsthand thinking” or the “firsthand interest” for short—is the
opportunity to reckon with one’s (mis)deeds. Elaborating the legal consequences
of this interest yields, in turn, what I refer to as the “Firsthand Theory” of the
privilege against self-incrimination.
This theory can address several objections to previous mental-privacy theories
of the privilege. It also answers three enduring questions: Why should juries be
prohibited from inferring a silent defendant’s guilt from their silence? Why is the
privilege unavailable in civil proceedings? When, if ever, will immunity permit
compelling someone to incriminate themselves?
* This paper was presented at the 2023 meeting of the Privacy Law Scholars Conference. Thanks to the
conference participants for improving this paper, especially Marc Blitz and Bryce Newell. Special thanks to
Barbara Herman, Seana Shiffrin, AJ Julius, and Richard Re for giving an enormous amount of input on previous
drafts of this article. Thanks also to Ted Sampsell-Jones, Almas Khan, Faraz Sanei, dre
´ Cummings, Aaron
Schwabach, Laura Bates, John Cortes, and the participants in the junior faculty workshop at Bowen Law School.
© 2024, Jordan Wallace-Wolf.
1301
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1302
I. A SHORT OVERVIEW OF SELF-INCRIMINATION SCHOLARSHIP . . . . . . . . . . 1306
A. The Privilege as a Means to Fulfill the Goals of the Legal
System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1307
B. The Privilege as the Recognition of a Fundamental Moral
Interest (in Mental Privacy) . . . . . . . . . . . . . . . . . . . . . . . . . 1312
II. THE FIRSTHAND THEORY: AN UPDATED RATIONALE FOR THE PRIVILEGE
AGAINST SELF-INCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1316
A. The Firsthand Interest—A Moral Interest in Unmediated
Remembering and Thinking . . . . . . . . . . . . . . . . . . . . . . . . . . 1316
B. The Firsthand Theory—The Advantages of the Firsthand Interest
for Understanding the Privilege Against Self-Incrimination . . . 1327
1. The Firsthand Interest Entails That the Privilege Should Be
Available at Trial and During Interrogation . . . . . . . . . . . 1328
2. The Firsthand Interest Does Not Entail That the Privilege
Should Be Available in Civil Proceedings . . . . . . . . . . . . 1332
III. ANSWERING OBJECTIONS AND ADDRESSING OTHER QUESTIONS ABOUT THE
PRIVILEGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1335
A. Does the Firsthand Theory Show Insufficient Concern for the
Victims of Criminal Wrongs? . . . . . . . . . . . . . . . . . . . . . . . . 1335
B. Is the Griffin Rule Against Negative Inferences Justified? . . . . 1339
C. When Should Immunity Permit Compelled Self-Incrimination?. . . 1342
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1347
INTRODUCTION
The Fifth Amendment’s stricture that “no person” shall “be compelled in any
criminal case to be a witness against himself” is the product of a far-reaching, con-
troversial, and rich jurisprudential history.
1
If one surveys this history, a persistent puzzle runs throughout: why make this
privilege available? What is so good about it that it deserves a continued place in
our constitutional jurisprudence? The difficulty of this question is immense. So
much so that it has generated a pattern in which nearly every jurist who sets out to
answer it begins by asserting, quite accurately, that no preceding jurist has fully
answered it and, sometimes, that it is more or less unanswerable.
2
1. U.S. CONST. amend. V; see John H. Langbein, The Historical Origins of the Privilege Against Self-
Incrimination at Common Law, 92 MICH. L. REV. 1047, 1047–48 (1994); LEONARD W. LEVY, ORIGINS OF THE
FIFTH AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION (1968); Albert W. Alschuler, A Peculiar
Privilege in Historical Perspective: The Right to Remain Silent, 94 MICH. L. REV. 2625 (1996); Ethan H. Shagan,
The English Inquisition: Constitutional Conflict and Ecclesiastical Law in the 1590s, 47 HIST. J. 541 (2004);
Miranda v. Arizona, 384 U.S. 436, 458–67 (1966) (reviewing the history of the Fifth Amendment); In re Flint
Water Cases, 53 F.4th 176, 213–16 (6th Cir. 2022) (Thapar, J., concurring) (same).
2. See Akhil Reed Amar & Rene
´e B. Lettow, Fifth Amendment First Principles: The Self-Incrimination
Clause, 93 MICH. L. REV. 857, 857 (1995) (“The Self-Incrimination Clause of the Fifth Amendment is an
1302 AMERICAN CRIMINAL LAW REVIEW [Vol. 61:1301
The crux of the difficulty is a dilemma. On one hand, the privilege does not obvi-
ously advance the goals of the criminal system because it inhibits the search for the
truth. Nor, on the other, does it clearly advance well-known moral values like can-
dor. To the contrary, it seems instead to aid in the evasion of accountability.
3
A
sixty-year stretch of trying to overcome this dilemma has produced an impres-
sively diverse set of self-incrimination theories, yet none has held the field. Severe
drawbacks plague them all.
4
As a result, a degree of exhaustion set in right as discussion of the privilege
reached a relative peak at the end of the 2000s.
5
At a symposium in 2008, a leading
commentator offered the striking conclusion that “the interesting question no lon-
ger is ‘what is the, or the best, theory of self-incrimination,’ because it is plain that
there is and will not be any good ones of the standard sort. Rather, the interesting
question is the puzzling persistence of the futile effort at standard theorizing.”
6
Another participant at this symposium struck more or less the same note, arguing
that “[i]f a few hundred years of scholarship and interpretation haven’t settled the
confusion [about the privilege], it’s hard to imagine anything that will.”
7
Others
have gone further, arguing not just that the justificatory basis of the privilege is
hopelessly obscure or no longer worth seeking, but that it is flatly non-existent, that
the scope or status of the privilege should be curtailed, or both.
8
unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights.”); William J. Stuntz, Self-
Incrimination and Excuse, 88 COLUM. L. REV. 1227, 1228 (1988) (“It is probably fair to say that most people
familiar with the doctrine surrounding the privilege . . . believe that it cannot be squared with any rational
theory.”); Mike Redmayne, Rethinking the Privilege Against Self-Incrimination, 27 OXFORD J. LEGAL STUD.
209, 210 (2007) (“[I]t is difficult, if not impossible, to provide a compelling rationale for the privilege.”); Robert
S. Gerstein, Privacy and Self-Incrimination, 80 ETHICS 87, 87 (1970) (“An effort has been made to bolster [the
privilege] with a variety of justifications, but none of them seems wholly satisfying.”); Stephen J. Schulhofer,
Some Kind Words for the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311, 311 (1991) (“It is hard to
find anyone these days who is willing to justify and defend the privilege against self-incrimination.”).
3. Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L.
REV. 671, 680 (1968) (“No parent would teach such a doctrine to his children . . . .”).
4. The following critically review the proffered rationales for the privilege: David Dolinko, Is There a
Rationale for the Privilege Against Self-Incrimination?, 33 UCLA L. REV. 1063 (1985); Friendly, supra note 3;
Constantine Theophilopoulos, The So-Called ‘Right’ to Silence and the ‘Privilege’ Against Self-Incrimination: A
Constitutional Principle in Search of Cogent Reasons, 18 S. AFR. J. HUM. RTS. 505 (2002); Michael S. Green,
The Privilege’s Last Stand: The Privilege Against Self-Incrimination and the Right to Rebel Against the State, 65
BROOK. L. REV. 627 (1999); Amar & Lettow, supra note 2, at 889–98; Ronald J. Allen, Theorizing About Self-
Incrimination, 30 CARDOZO L. REV. 729, 730–39 (2008); Schulhofer, supra note 2.
5. See Allen, supra note 4; Michael S. Pardo, Self-Incrimination and the Epistemology of Testimony, 30
CARDOZO L. REV. 1023 (2008); Andrew E. Taslitz, Confessing in the Human Voice: A Defense of the Privilege
Against Self-Incrimination, 7 CARDOZO PUB. L. POL’Y & ETHICS J. 121 (2008).
6. Allen, supra note 4, at 730.
7. Kenworthey Bilz, Self-Incrimination Doctrine is Dead; Long Live Self-Incrimination Doctrine:
Confessions, Scientific Evidence, and the Anxieties of the Liberal State, 30 CARDOZO L. REV. 807, 841 (2008).
8. See Ted Sampsell-Jones, Making Defendants Speak, 93 MINN. L. REV. 1327, 1328 (2009); Jeffrey Bellin,
Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants’ Trial Silence, 71
OHIO ST. L.J. 229, 234 (2010); Amar & Lettow, supra note 2, at 895 (noting that the privilege “has been the target of
repeated analytic assault over the course of the twentieth century from thoughtful commentators urging constitutional
amendments to narrow it or repeal it altogether”) (citing sources); Alschuler, supra note 1, at 2631; Vincent Martin
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