Proximate Cause in Constitutional Torts: Holding Interrogators Liable for Fifth Amendment Violations at Trial

Authors

Joel Flaxman, University of Michigan Law SchoolFollow

Abstract

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It suggests a different approach that is more faithful to Supreme Court precedent and better explains the variety of holdings among lower courts. Part II examines the conflicting opinions of the Fifth and Sixth Circuits in more detail and argues that the analysis of the Sixth Circuit is preferable because it more closely tracks Supreme Court precedent and the framework developed in Part I.

Recommended Citation

Joel Flaxman, Proximate Cause in Constitutional Torts: Holding Interrogators Liable for Fifth Amendment Violations at Trial, 105 Mich. L. Rev. 1551 (2007).
Available at: https://repository.law.umich.edu/mlr/vol105/iss7/13