Touro Law Review


Over the past several decades, our society has continued to become even more globalized and interconnected. The dynamic put increasing pressure on the fairness of criminal trials in domestic courts. This Article discusses two recent phenomena that illustrate this evolution and their impact on the defendants’ rights against selfincrimination: the globalization and privatization of the federal prosecutions. Globalization is understood as the United States’ Government’s increased reliance on foreign authorities in prosecution of cross-border crimes, while privatization denotes the Government’s reliance on private actors in conducting investigations. Investigations conducted by private entities and foreign governments, and the evidence those investigations produce, raise significant constitutional questions. Accordingly, this Article positions these phenomena and recent case law side-by-side the Fifth Amendment precedent that interpreted the constitutional protections against self-incrimination expansively. To best preserve the values of the Fifth Amendment, federal courts should evaluate compelled testimony with a flexible evidentiary standard. This standard must be cognizant of the changing prosecutorial landscape creating new contexts where defendants may incriminate themselves, and of how can such confessions shape the direction of investigations.