This is the second post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts. Today we’re revisiting one of our earliest posts, Hearsay and Professor X, from way back in December of last year. Although that post focuses on hearsay issues, this retcon is actually about the Fifth Amendment aspect. After further research, we think that the original post was incorrect, and that the Fifth Amendment rights to silence and non-self-incrimination would protect against having one’s thoughts read by a psychic.
The Supreme Court has held that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.” Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis added). So what is a testimonial communication? The Court explained in a later case that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988). There are many kinds of evidence that are non-testimonial and may be demanded without running afoul of the Fifth Amendment, including blood, handwriting, and even voice samples. Doe, 487 U.S. at 210. Perhaps the best example of the distinction between testimonial and non-testimonial communication is that requiring a witness to turn over a key to a lockbox is non-testimonial, while requiring a witness to divulge the combination to a safe is testimonial. Id.
(This distinction is of vital importance in the era of password-based encryption, and it is not entirely clear whether the Fifth Amendment protects passwords. One court decided the issue by holding that the defendant need not give up the password but rather only produce the contents of the encrypted drive. In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (Feb. 19, 2009). Thus, the protected evidence (the contents of the defendant’s mind) remained secret while the unprotected evidence (the contents of the drive) were discovered.)
We need not wonder whether reading someone’s thoughts counts as testimonial communication, however. As the Court explained “[t]he expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment.” Doe, 487 U.S. at 210 n. 9.
One might be tempted to argue that the Fifth Amendment shouldn’t apply because the testimony is the psychic’s rather than the witness’s (i.e. the difference between the witness saying “I saw Magneto kill Jean Grey” and the psychic saying “The witness remembers seeing Magneto kill Jean Grey”). However, the Supreme Court actually addressed this issue in Estelle v. Smith, 451 U.S. 454 (1981). In that case, a defendant was subjected to a psychiatric evaluation, and the psychiatrist’s expert testimony was offered against the defendant. The Court held that the expert testimony violated the right against self-incrimination because the expert testimony was based in part on the defendant’s own statements (and omissions). Thus, using an intermediary expert witness to interpret a witness’s statements will not evade the Fifth Amendment.
So, contrary to our earlier conclusion, we think that psychic powers could likely not be used to produce admissible evidence from a witness who invoked the Fifth Amendment. And believe it or not, this issue actually has modern resonance. Although a far cry from the kind of mind-reading that Professor X is capable of, technologies like fMRI may someday see regular use in criminal investigation. However, scholars and commentators are divided on whether fMRI-like tests fall under the scope of the Fifth Amendment (i.e. is it more like a blood sample or speech?). See, e.g., Benjamin Holley, It’s All in Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments, 28 Dev. Mental Health L. 1 (2009); Matthew Baptiste Holloway, One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-incrimination, 27 Temp. J. Sci. Tech. & Envtl. L. 141 (2008); Dov Fox, The Right to Silence as Protecting Mental Control, 42 Akron L. Rev. 763 (2009).
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