Law Commons^™

The lack of a definition of compulsion plagues Fifth Amendment jurisprudence and scholarship, producing analytical confusion and worse. Surprisingly, neither Fifth Amendment jurisprudence nor scholarship offers a definition of what it means to “compel” a person to self-incriminate, even though there the concept of compulsion is critical to an understanding of the constitutional prohibition on compelled self-incrimination. The Supreme Court has occasionally referred to an overborne-will test for compulsion, but that test is of dubious provenance and difficult to apply. The Court frequently ignores the overborne-will test, and it cannot be reconciled with a good deal of Fifth Amendment doctrine.  …