Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination In an International Context

Abstract

As crime becomes an international rather than a domestic concern, law· enforcement officials across the globe join to pursue, prosecute, and punish criminals. Out of this phenomenon emerges the field of international criminal law. Among the principal challenges for this field is how to protect the rights of the accused individual against the combined power of the international community. In this Article, Professor Diane Marie Amann confronts that question with regard to one right, examining whether the Fifth Amendment privilege against self-incrimination ought to protect a witness who fears only prosecution in a foreign country from having to testify in a U.S. proceeding. It is a question that has divided the U.S. courts of appeals, and one on which the U.S. Supreme Court heard argument in April, 1998.

This Article looks at the issue from an international criminal law perspective. First, it reviews growing international recognition of a right against self·incrimination. Second, it demonstrates the rapid increase in international law-enforcement cooperation. Finally, it explores the historical purposes underlying the Fifth Amendment to the U.S. Constitution. The Article concludes that U.S. courts must honor the privilege against self-incrimination not only in the domestic, but also in the international, context.

Keywords: criminal law, international law, Fifth Amendment, self-incrimination, compelled statements, evidence, international criminal tribunals

JEL Classification: k14, k19