The Historical Roots of the Fifth Amendment: Unveiling its Evolution from Involuntary Confessions to Constitutional Safeguards in Offshore Tax Cases
Before we can begin to understand how the Fifth Amendment applies in offshore tax cases, we must first understand why such a provision is in the Constitution in the first place. Most of us cannot relate to confessions extracted by torture (Kylo Ren’s interrogation of Poe Dameron in The Force Awakens is in something of a gray area). But for the people who voted to ratify the Constitution in the late 1780s, torture and involuntary confessions were a big deal. Many of their great-grandfathers and great-grandmothers left England largely because of this issue.
As late as the mid-17th century, English officials often forced prisoners to take ex officio mero oaths before they even knew the nature of the charges against them, and they then proceeded to take whatever information they needed by whatever means at their disposal. “Freeborn” John Lilburne famously refused to take such an oath in 1637, after his conviction for the heinous crime of publishing an unlicensed newspaper and subsequent refusal to rat out his fellow Puritans.
His stance helped inspire other dissidents to present The Humble Petition of Many Thousands to the English Parliament in 1647, and much of that document later worked its way into the Declaration of Independence, the Constitution, and the Bill of Rights.
As a result of all this, the Fifth Amendment is normally associated with criminal proceedings and the prohibition against self-incriminating testimony. However, the Fifth Amendment is a little broader than that. Its protections also apply in some pseudo-criminal matters, such as contempt of Congress. More importantly for tax law purposes, there is a documentary production privilege, and there is a trio of cases that flesh out this concept.
Trial, entertainment law and U.S. international tax law
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