Week Ten, Part 2 - Crim: Plead the Fifth

The class grows quiet as Professor Tex Dutile walks into Criminal Law with a stack of mid-term bluebooks.

“After teaching for over a hundred years,” he says, “I'm convinced of only one thing: there's no good way to distribute these.”

In keeping with the Notre Dame approach of “blind grading,” the test booklets do not list our names, only the the last four digits of a student's Social Security number.

Dutile arranges the bluebooks in five numerical piles at the front. Row by row we walk forward, docile, like sheep to the slaughter.

On the way back to my seat, I flip through the pages. There’s a “5” written after the last paragraph.

Dutile says he didn’t compute letter grades. Rather, he gave us points based on how well we detected and discussed the issues.

We review the exam. There were five major issues, Dutile says, each worth four points.

Five out of 20! That’s terrible – an F by percentage, maybe a D- on a don't-flunk-anyone curve! It hits me gobsmack in the face. Wow! In 18 years of full-time schooling, I’ve never gotten a grade this low.

Dutile lists the issues:

1. The quantum of evidence on which Officer Foley based his search of banker Bill Brown.
2. The three intrusions by Officer Foley: the stop, the request to exit the car, the pat-down.
3. Officer Foley’s search of the trunk and the metal container.
4. The consent given by Brown’s wife for Officer Foley to search the suspect’s home.
5. Whether that evidence derived from Officer Foley’s search was tainted and therefore inadmissible in court.

I came to the wrong conclusion on the first three issues and completely ignored the last two. Ye gads! I feel nauseous.

Dutile doesn't linger. We finish the last three cases on search-and-seizure, then begin a new section on the Fifth Amendment privilege against self-incrimination: “No person... shall be compelled in any criminal case to be a witness against himself.”

Dutiel says the principle often runs counter to our instincts. “If I ask whether you cheated on the examination, and you say, ‘I refuse to answer on grounds that it may incriminate me....’” He shakes his head. “That wouldn't be the kind of relationship I'd expect between instructor and student.”

Dutile gives another example. “Suppose when my children were younger, I asked, ‘Dan, did you slap Patty?’ He said, ‘Hey, Dad, read the Constitution. I don't have to answer that!" We laugh and Dutile waits us to quiet down. “Normally what I'd do in a situation like that is grant immunity and jail him for contempt.”

Dutile explains the Fifth’s origins in ecclesiastical courts. He says that a person’s viewpoint of this legal privilege depends on the type of government. “If you live in a jurisdiction that’s fair and unoppressive, the less you think you need the Fifth. But if you live in an inquisitorial state, the more you think, ‘this Fifth Amendment works out pretty well!’”

We learn that it’s unconstitutional for a prosecutor to make adverse comments about the defendant’s use of privilege.

According to Dutile, there’s no telling a jury, ‘And if Mr. Charles Manson were actually not guilty, why doesn’t he tell his whereabouts during the night in question!”

However, the issue may be skirted, Dutile says. “If I were a prosecutor, I might say, ‘Now you can’t hold it against Mr. Manson for not testifying.’ Then I’d wait. ‘But you can look at the evidence presented. And even though Mr. Manson didn’t tell us where he was on during the murders...’ Dutile pauses, “it’s clear from the forensics that he was there.’”

Duties closes with a final thought on the Fifth Amendment. “Consider that the protection against self-incrimination may be more important in the long haul than over this weekend. As rights erode, they become much more difficult to re-institute.”

Class ends and, head down, I hurry back to the library. If anyone asks about my grade, I will plead the Fifth.

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