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61 Am. Crim. L. Rev. 1301 (2024)
The Firsthand Theory: An Updated Rationale for the Privilege against Self-Incrimination

handle is hein.journals/amcrimlr61 and id is 1296 raw text is: 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, dr6 Cummings, Aaron Schwabach, Laura Bates, John Cortes, and the participants in the junior faculty workshop at Bowen Law School. © 2024, Jordan Wallace-Wolf. 1301

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