Volume 74, Number 6

December 1999

Compulsion “To Be a Witness” and the Resurrection of Boyd

Richard A. Nagareda

For more than a century, judges and commentators have sought to determine the proper meaning of the Self-Incrimination Clause of the Fifth Amendment . Although the Supreme Court during this period has expanded dramatically the scope of protection afforded by the Clause with regard to self-incriminatory oral statements, the Court has retreated steadily from its 1886 decision in Boyd v. United States, which had provided full-scale constitutional protection to self-incriminatory documents. In this Article Professor Nagareda draws upon the text of the Fifth Amendment, the content of related constitutional guarantees, and recent scholarship on the history of the privilege against self-incrimination to argue for a revival of the Fifth Amendment holding of Boyd. He concludes that the constitutional prohibition upon compulsion of a person “to be a witness” against himself is best understood as synonymous with the bar upon compulsion of a person “to give evidence” against himself found in state sources contemporaneous with the framing of the Bill of Rights. Such a reading not only supports the holding of Boyd but, more broadly, serves to clarify the relationship between the Fifth Amendment (as a categorical ban against the compelled giving of incriminatory evidence) and the Fourth Amendment (as a regulation of the unilateral taking of such evidence by government agents). At the same time, Professor Nagareda’s reading serves to underscore the textual support for much of modem self-incrimination jurisprudence including, most significantly, the use immunity doctrine.