No person ... shall be compelled in any criminal case to be a witness against himself ... nor be deprived of life, liberty, or property, without due process of law
Oliverio Martinez was seriously wounded ["permanently blinded and paralyzed from the waist down"] in a struggle with the police, shot multiple times by an officer. While at the hospital getting treatment, the police [Chavez] questioned him, even as he cried out in pain and feared death. If credible, the police had a reason to continue -- to get a statement before he died, one that might help determine if the officers on the scene were in anyway liable for the injuries. OTOH, especially since blindness from his injuries led him to not realize who was questioning him and could furthered led him to believe that he would have to cooperate to get treatment, such continual questioning while he was in great pain could be considered to be torturous.
It surely would not be that reliable as evidence in court, either criminally or in a civil damage suit. The lack of Miranda warnings also made it clear that such questioning would of limited value, though perhaps useful in an investigatory context. But, Martinez was never charged, so he did not have the need to claim Fifth Amendment right against self-incrimination in that context. All the same, he argued that right was violated by that hospital interrogation, and sued for damages. After all, do we not have the "right to remain silent," [as well as the language of the Fifth Amendment, this underlines why one should not say the "privilege" in this context] which Miranda warnings (given once you are in custody) suggest exist long before you go to court?
Well, not exactly. You can be required to testify (including as a witness in another case) if given immunity. Likewise, in Chavez v. Martinez, the Supremes held the right does not arise when there is no testimony. [The Fifth Amendment references a "case," but Martinez suggested that kicked in during the police interrogation.] The Court was rather split, so it is important to underline exactly what they decided. Six justices agreed with this stance. Nonetheless, a separate set of five held that Martinez might still have a substantive due process claim of mistreatment. The "opinion of the court" on this point was one sentence. Souter (joined by Breyer in full) wrote said sentence and a separate opinion, noting that Martinez had a "serious" claim of mistreatment.
Nonetheless, he agreed with the Thomas opinion on the self-accusation point. The Thomas opinion itself was splintered. Justice O'Connor (no opinion) did not join the section that argued that even if Martinez makes such a claim, the police's treatment was not abusive (basically because they didn't inflict the injuries to obtain information and had a reason to question him). It should be underlined that the opinion did not authorize torture for information not used in criminal trials -- it did water down the term some. Justice Scalia (concurring opinion) did not join the last section (two sentences), which held Martinez failed both claims and remanding the case, arguing the remand was pointless given there was no claim left.
Meanwhile, Kennedy (joined by Stevens and in part by Ginsburg) argued that the right to self-incrimination holds throughout, Stevens emphasized the nastiness of the proceedings by including a transcript of the interrogation (how about a sound file?) and Ginsburg went one further than Kennedy.* Kennedy's opinion is clearly one of his most eloquent. This includes his living constitution approach: "The Constitution is based upon the theory that when past abuses are forbidden the resulting right has present meaning." Kennedy did have, see Ginsburg's separate dissent, a somewhat narrow reach to his eloquent words: "The record supports the ultimate finding that the officer acted with the intent of exploiting Martinez’s condition for purposes of extracting a statement." Questioning those in his condition is not always illegal.
This trio focused on self-incrimination:
A constitutional right [under the Self-Incrimination Clause] is traduced the moment torture or its close equivalents are brought to bear. Constitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place. These are the premises of this separate opinion.
The trio were willing to go the "shocks the conscience" substantive due process route to obtain five votes. [The right against "unreasonable" seizures factors in some fashion here as well.] The problem with this approach is that it is more open-ended and difficult to reach, while self-incrimination is more particular and less opaque. Stevens did emphasize that we are dealing with the 14th Amendment Due Process Clause, so either way, "liberty" was infringed here. And, there probably is some overlap, especially since avoiding torture (even during interrogations not put into evidence, especially since back in the day, defendants didn't testify in their own trials) hits to the core of the provision's roots. Consider there being a "penumbra" to the provision.
[The limits of a "shocks the conscience" security against abusive interrogation not used in a trial is underlined in the Arar case; other cases will have their own legal fictions to justify refusal to even seriously examining the facts of the allegations. Not that a nation of immigrant and travellers should should shrug when non-citizens are mistreated and tossed aside when they demand a bit of justice. See also the book below on this "civil" loophole.]
As to history and current application, this entry was inspired by Is There A Right To Remain Silent: Coercive Interrogation and the Fifth Amendment After 9/11 by Alan M. Dershowitz, which is more about the history of the provision (and its application over time) than its current application. Some messy sourcing, e.g., Kennedy said certain things said to be written by Stevens etc. Also, AD probably read the opinions more broadly than their terms justified (e.g., the dissents didn't say as such that torture or the like HAD to be shown for the Fifth Amendment to kick in; Thomas was sure to say torture was not present here, so didn't justify it for preventive interrogation).
But, it's a good look at the provision, and the difficulty (messiness) of constitutional interpretation overall. I was wary at first, since the guy raised the idea of torture warrants, but good little volume. AD concluded by noting that the the right against self-incrimination during trials prevents perjury and furthers our accusatorial system, works pretty well when applied to witnesses too (especially if immunity is required when the defense uses compulsory process), and unexpected consequences would probably arise if we do away with it. For instance, in countries testimony is required, there tends to be a policy where lying would not result in perjury prosecutions.
Finally, as applied to suspects, the history (against torture etc.) and spirit of the provision requires its protection. [BTW, we can also interpret "case" broadly to include investigation; likewise, even those not charged very well will be burdened in such a way that makes some hyper-reliance on "criminal" patently unjust. See also, Ginsburg's opinion.] Likewise, in our more preventive focused era, there is a particular need -- more of his "rights from wrongs" (his book on the subject is worth a look) philosophy. He ends with a challenge to secure rights in the preventive state, the responsibility not just of the courts, but for all of government (including us).
This idea that the principles expressed by the Constitution is not just the responsibility of the courts is also a theme with which I'm totally on board.
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* Stevens' separate opinion had bite, but Ginsburg was the most protective:
I write separately to state my view that, even if no finding were made concerning Martinez’s belief that refusal to answer would delay his treatment, or Chavez’s intent to create such an impression, the interrogation in this case would remain a clear instance of the kind of compulsion no reasonable officer would have thought constitutionally permissible.
Kennedy (joined in full by Stevens) in effect relied on the assumption that the police's conduct here implied a quid pro quo -- talk or no treatment. They didn't directly control the treatment based on his cooperationg, but implied as much. Another hospital based interrogation case (this one in which a trial did occur) was referenced on this point. This suggests a narrow, if important, limitation was at issue here.