Right Against Self-Incrimination

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RIGHT AGAINST SELF-INCRIMINATION

The Fifth Amendment is virtually synonymous with the right against self-incrimination. One who "pleads the Fifth" is not insisting on grand jury indictment, freedom from double jeopardy, or just compensation for property taken by the government—all safeguarded in the same amendment. He is saying that he will not reply to an official query because his truthful answer might expose him to criminal jeopardy. He seems to be saying that he has something to hide, making the Fifth appear to be a protection of the guilty; it is, but probably no more so than other rights of the criminally accused. The right against self-incrimination is the most misunderstood, unrespected, and controversial of all constitutional rights.

Its very name is a problem. It is customarily referred to as "the privilege" against self-incrimination, following the usage of lawyers in discussing evidentiary privileges (for example, the husband-wife privilege, the attorney-client privilege). Popular usage, however, contrasts "privilege" with "rights," and the Fifth Amendment's clause on self-incrimination creates a constitutional right with the same status as other rights. Its "name" is unknown to the Constitution, whose words cover more than merely a right or privilege against self-incrimination: "no person … shall be compelled in any criminal case to be a witness against himself." What does the text mean?

The protection of the clause extends only to natural persons, not organizations like corporations or unions. A member of an organization cannot claim its benefits if the inquiry would incriminate the organization but not him personally. He can claim its benefits only for himself, not for others. The text also suggests that a prime purpose of the clause is to protect against government coercion; one may voluntarily answer any incriminating question or confess to any crime—subject to the requirements for waiver of constitutional rights. In some respects the text is broad, because a person can be a witness against himself in ways that do not incriminate him. He can, in a criminal case, injure his civil interests or disgrace himself in the public mind. Thus the Fifth can be construed on its face to protect against disclosures that expose one to either civil liability or infamy. The Fifth can also be construed to apply to an ordinary witness as well as the criminal defendant himself. In Virginia, where the right against self-incrimination first received constitutional status, it appeared in a paragraph relating to the accused only. The Fifth Amendment is not similarly restrictive, unlike the Sixth Amendment which explicitly refers to the accused, protecting him alone. The location of the clause in the Fifth, rather than in the Sixth, and its reference to "no person" makes it applicable to witnesses as well as to the accused.

On the other hand, the clause has a distinctively limiting factor: it is restricted on its face to criminal cases. The phrase "criminal case" seems to exclude civil cases. Some judges have argued that no criminal case exists until a formal charge has been made against the accused. Under such an interpretation the right would have no existence until the accused is put on trial; before that, when he is taken into custody, interrogated by the police, or examined by a grand jury, he would not have the benefit of the right. Nor would he have its benefit in a nonjudicial proceeding such as a legislative investigation or an administrative hearing. The Supreme Court has given the impression that the clause, if taken literally, would be so restricted; but the Court refuses to take the clause literally. Thus, in counselman v. hitchcock (1892), the Court held that the Fifth does protect ordinary witnesses, even in federal grand jury proceedings. Unanimously the Court declared, "It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself." Although the Court did not explain why it was "impossible," the Court was right. Had the framers of the Fifth intended the literal, restrictive meaning, their constitutional provision would have been a meaningless gesture. There was no need to protect the accused at his trial; he was not permitted to give testimony, whether for or against himself, at the time of the framing of the Fifth. Making the criminal defendant competent to be a witness in his own case was a reform of the later nineteenth century, beginning in the state courts with Maine in 1864, in the federal courts by an act of Congress in 1878.

Illumination from the face of a text that does not mean what it says is necessarily faint. Occasionally the Court will display its wretched knowledge of history in an effort to explain the right against self incrimination. Justice felix frankfurter for the Court, in ullmann v. united states (1956), drew lessons from the "name" of "the privilege against self-incrimination," but conceded that it is a provision of the Constitution "of which it is peculiarly true that "a page of history is worth a volume of logic." twining v. new jersey (1908), the most historically minded opinion ever delivered for the Court on the right, was misleading and shallow when it was not inaccurate on the question whether the right was "a fundamental principle of liberty and justice which inheres in the very idea of free government."

The American origins of the right derive largely from the inherited English common law system of criminal justice. But the English origins, so much more complex, spill over legal boundaries and reflect the many-sided religious, political, and constitutional issues that racked England during the sixteenth and seventeenth centuries: the struggles between Anglicanism and Puritanism, between Parliament and king, between limited government and arbitrary rule, and between freedom of conscience and suppression of heresy and sedition. Even within the more immediate confines of law, the history of the right against self-incrimination is enmeshed in broad issues: the contests for supremacy between the accusatory and the inquisitional systems of procedure, the common law and the royal prerogative, and the common law and its canon and civil law rivals. Against this broad background the origins of the concept that "no man is bound to accuse himself" (nemo tenetur seipsum accusare) must be understood and the concept's legal development traced.

The right against self-incrimination originated as an indirect product of the common law's accusatory system and of its opposition to rival systems which employed inquisitorial procedures. Toward the close of the sixteenth century, just before the concept first appeared in England on a sustained basis, all courts of criminal jurisdiction habitually sought to exact self-incriminatory admissions from persons suspected of or charged with crime. Although defendants in crown cases suffered from this and many other harsh procedures, even in common law courts, the accusatory system afforded a degree of fair play not available under the inquisitional system. Moreover, torture was never sanctioned by the common law, although it was employed as an instrument of royal prerogative until 1641.

By contrast, torture for the purpose of detecting crime and inducing confession was regularly authorized by the Roman codes of the canon and civil law. "Abandon all hope, ye who enter here" well describes the chances of an accused person under inquisitorial procedures characterized by presentment based on mere rumor or suspicion, indefiniteness of accusation, the oath ex officio, secrecy, lack of confrontation, coerced confessions, and magistrates acting as accusers and prosecutors as well as "judges." This system of procedure, by which heresy was most efficiently combated, was introduced into England by ecclesiastical courts.

The use of the oath ex officio by prerogative courts, particularly by the ecclesiastical Court of High Commission, which Elizabeth I reconstituted, resulted in the defensive claim that "no man is bound to accuse himself." The High Commission, an instrument of the Crown for maintaining religious uniformity under the Anglican establishment, used the canon law inquisitorial process, but made the oath ex officio, rather than torture, the crux of its procedure. Men suspected of "heretical opinions," "seditious books," or "conspiracies" were summoned before the High Commission without being informed of the accusation against them or the identity of their accusers. Denied due process of law by common law standards, suspects were required to take an oath to answer truthfully to interrogatories which sought to establish guilt for crimes neither charged nor disclosed.

A nonconformist victim of the High Commission found himself thrust between hammer and anvil: refusal to take the oath or, having taken it, refusal to answer the interrogatories meant a sentence for contempt and invited Star Chamber proceedings; to take the oath and respond truthfully to questioning often meant to convict oneself of religious or political crimes and, moreover, to supply evidence against nonconformist accomplices; to take the oath and then lie meant to sin against the Scriptures and risk conviction for perjury. Common lawyers of the Puritan party developed the daring argument that the oath, although sanctioned by the Crown, was unconstitutional because it violated magna carta, which limited even the royal prerogative.

The argument had myth-making qualities, for it was one of the earliest to exalt Magna Carta as the symbol and source of English constitutional liberty. As yet there was no contention that one need not answer incriminating questions after accusation by due process according to common law. But a later generation would use substantially the same argument—"that by the Statutes of Magna Charta … for a man to accuse himself was and is utterlie inhibited"—on behalf of the contention that one need not involuntarily answer questions even after one had been properly accused.

Under Chief Justice edward coke the common law courts, with the sympathy of Commons, vindicated the Puritan tactic of litigious opposition to the High Commission. The deep hostility between the canon and common law systems expressed itself in a series of writs of prohibition issued by Coke and his colleagues, staying the Commission's proceedings. Coke, adept at creating legal fictions which he clothed with the authority of resurrected "precedents" and inferences from Magna Carta, grounded twenty of these prohibitions on the allegedly ancient common law rule that no man is bound to accuse himself criminally.

In the 1630s the High Commission and the Star Chamber, which employed similar procedures, reached the zenith of their powers. But in 1637 a flinty Puritan agitator, john lilburne, refused the oath. His well-publicized opposition to incriminatory questioning focused England's attention upon the injustice and illegality of such practices. In 1641 the Long Parliament, dominated by the Puritan party and common lawyers, condemned the sentences against Lilburne and others, abolished the Star Chamber and the High Commission, and prohibited ecclesiastical authorities from administering any oath obliging one "to confess or to accuse himself or herself of any crime."

Common law courts, however, continued to ask incriminating questions and to bully witnesses into answering them. The rudimentary idea of a right against self-incrimination was nevertheless lodged in the imperishable opinions of Coke, publicized by Lilburne and the Levellers, and firmly associated with Magna Carta. The idea was beginning to take hold of men's minds. Lilburne was again the catalytic agent. At his various trials for his life, in his testimony before investigating committees of Parliament, and in his ceaseless tracts, he dramatically popularized the demand that a right against self-incrimination be accorded general legal recognition. His career illustrates how the right against self-incrimination developed not only in conjunction with a whole gamut of fair procedures associated with "due process of law" but also with demands for freedom of conscience and expression. After Lilburne's time the right became entrenched in English jurisprudence, even under the judicial tyrants of the Restoration. As the state became more secure and as fairer treatment of the criminally accused became possible, the old practice of bullying the prisoner for answers gradually died out. By the early eighteenth century the accused was no longer put on the stand at all; he could not give evidence in his own behalf even if he wished to, although he was permitted to tell his story, unsworn. The prisoner was regarded as incompetent to be a witness for himself.

After the first quarter of the eighteenth century, the English history of the right centered primarily upon the preliminary examination of the suspect and the legality of placing in evidence various types of involuntary confessions. Incriminating statements made by suspects at the preliminary examination could be used against them at their trials; a confession, even though not made under oath, sufficed to convict. Yet suspects could not be interrogated under oath. One might be ensnared into a confession by the sharp and intimidating tactics of the examining magistrate; but there was no legal obligation to answer an incriminating question—nor, until 1848, to notify the suspect or prisoner of his right to refuse answer. One's answers, given in ignorance of his right, might be used against him. However, the courts excluded confessions that had been made under duress. Only involuntary confessions were seen as a violation of the right. Lord Chief Baron Geoffrey Gilbert in his Law of Evidence (1756) declared that although a confession was the best evidence of guilt, "this Confession must be voluntary and without compulsion; for our Law … will not force any Man to accuse himself; and in this we do certainly follow that Law of Nature" that commands self-preservation.

Thus, opposition to the oath ex officio ended in the common law right to refuse to furnish incriminating evidence against oneself even when all formalities of common law accusation had first been fulfilled. The prisoner demanded that the state prove its case against him, and he confronted the witnesses who testified against him. The Levellers, led by Lilburne, even claimed a right not to answer any questions concerning themselves, if life, liberty, or property might be jeopardized, regardless of the tribunal or government agency directing the examination, be it judicial, legislative, or executive. The Leveller claim to a right against self-incrimination raised the generic problem of the nature of sovereignty in England and spurred the transmutation of Magna Carta from a feudal relic of baronial reaction into a modern bulwark of the rule of law and regularized restraints upon government power.

The claim to this right also emerged in the context of a cluster of criminal procedures whose object was to ensure fair play for the criminally accused. It harmonized with the principles that the accused was innocent until proved guilty and that the burden of proof was on the prosecution. It was related to the idea that a man's home should not be promiscuously broken into and rifled for evidence of his reading and writing. It was intimately connected to the belief that torture or any cruelty in forcing a man to expose his guilt was unfair and illegal. It was indirectly associated with the right to counsel and the right to have witnesses on behalf of the defendant, so that his lips could remain sealed against the government's questions or accusations. It was at first a privilege of the guilty, given the nature of the substantive law of religious and political crimes. But the right became neither a privilege of the guilty nor a protection of the innocent. It became merely one of the ways of fairly determining guilt or innocence, like trial by jury itself; it became part of due process of the law, a fundamental principle of the accusatorial system. It reflected the view that society benefited by seeking the defendant's conviction without the aid of his involuntary admissions. Forcing self-incrimination was thought to brutalize the system of criminal justice and to produce untrustworthy evidence.

Above all, the right was closely linked to freedom of speech and religious liberty. It was, in its origins, unquestionably the invention of those who were guilty of religious crimes such as heresy, schism, and nonconformity, and later, of political crimes such as treason, seditious libel, and breach of parliamentary privilege. More often than not, the offense was merely criticism of the government, its policies, or its officers. The right was associated, then, with guilt for crimes of conscience, of belief, and of association. In the broadest sense it was not so much a protection of the guilty, or even the innocent, but a protection of freedom of expression, of political liberty, and of the right to worship as one pleased. The symbolic importance and practical function of the right certainly settled matters, taken for granted, in the eighteenth century. And it was part of the heritage of liberty that the common law bequeathed to the English settlers in America.

Yet, the right had to be won in every colony, invariably under conditions similar to those that generated it in England. The first glimmer of the right in America was evident in the heresy case of John Wheelwright, tried in 1637 in Massachusetts. In colony after colony, people exposed to the inquisitorial tactics of the prerogative court of the governor and council refused to answer to incriminating interrogatories in cases heavy with political implications. By the end of the seventeenth century the right was unevenly recognized in the colonies. As the English common law increasingly became American law and the legal profession grew in size, competence, and influence, Americans developed a greater familiarity with the right. English law books and English criminal procedure provided a model. From Edmond Wingate's Maxims of Reason (1658), which included the earliest discussion of the maxim, "Nemo tenetur accusare seipsum," to Gilbert's Evidence, law books praised the right. It grew so in popularity that in 1735 benjamin franklin, hearing that a church wanted to examine the sermons of an unorthodox minister, could declare: "It was contrary to the common Rights of Mankind, no Man being obliged to furnish Matter of Accusation against himself." In 1754 a witness parried a Massachusetts legislative investigation into seditious libel by quoting the well-known Latin maxim, which he freely translated as "A Right of Silence as the Priviledge of every Englishman." In 1770 the attorney general of Pennsylvania ruled that an admiralty court could not oblige people to answer interrogatories "which may have a tendency to criminate themselves, or subject them to a penalty, it being contrary to any principle of Reason and the Laws of England." When, in 1770, New York's legislature jailed Alexander McDougall, a popular patriot leader who refused answer to incriminating queries about a seditious broadside, the public associated the right with the patriot cause, and the press printed the toast, "No Answer to Interrogatories, when tending to accuse the Person interrogated." Thereafter the New York legislature granted absolute immunity to recalcitrant malefactors whose testimony was required in trials or investigations.

In 1776 the virginia constitution and declaration of rights provided that in criminal prosecutions the accused party cannot "be compelled to give evidence against himself." Every state (eight including Vermont) that prefaced its constitution with a bill of rights imitated Virginia's phrasing, although two, by placing the clause in a section apart from the rights of the accused, extended the right to third parties or witnesses. Whether the right was constitutionally secured or was protected by common law made little difference, because the early decisions, even in states that constitutionally secured the right, followed the common law rather than the narrower phrasing of their constitutions. For example, the pennsylvania constitution of 1776 had a self-incrimination clause that referred to "no man," which the 1790 constitution narrowed to "the accused." Nevertheless, in the first case on this clause the state supreme court applied it to the production of papers in civil cases and to questions involving exposure to "shame or reproach."

During the controversy over the ratification of the constitution of 1787, only four states recommended that a comprehensive bill of rights should be added to the new document, but those four demanded a self-incrimination clause modeled on the conventional phrasing that no person should be compelled to give evidence against himself. james madison, in framing what became the Fifth Amendment, urged in sweeping language that no person should be "compelled to be a witness against himself." That phrasing was amended to apply only to criminal cases, thereby permitting courts to compel a civil defendant to produce documents against himself, injuring his civil interest without infringing his traditional rights not to produce them if they could harm him criminally. Whether the framers of the clause in the Fifth meant it to be fully co-extensive with the still expanding common law principle is unknown. The language of the clause and its framers' understanding may not have been synonymous, especially because a criminal defendant could not testify under oath even in the absence of the self-incrimination clause. It was intended as a ban on torture, but it also represented the opinion of the framers that the right against self-incrimination was a legitimate defense possessed by every individual against government. The framers were tough-minded revolutionaries who risked everything in support of their belief that legitimate government exercises its powers in subordination to personal rights. The framers were not soft, naive, or disregardful of the claims of law and order. They were mindful that the enduring interests of the community required justice to be done as fairly as possible: that no one should have to be a witness against himself in a criminal case was a central feature of the accusatory system of criminal justice, which the framers identified with fairness. Deeply committed to a system of criminal justice that minimized the possibilities of convicting the innocent, they were not less concerned about the humanity that the law should show even to the offender. The Fifth Amendment reflected their judgment that in a society based on respect for the individual, the government shouldered the entire burden of proving guilt and the accused need make no unwilling contribution to his conviction.

What is the present scope of the right and how have the Supreme Court's interpretations compared with the history of the right? Generally the Court has construed the clause of the Fifth as if the letter killeth. Seeking the spirit and policies of the clause, the Court has tended to give it an ever widening meaning, on the principle that "it is as broad as the mischief against which it seeks to guard," as the Court said in Counselman. In effect the Court has taken the position that the Fifth embodied the still evolving common law of the matter rather than a rule of fixed meaning. Often the Court has had history on its side without knowing it, with the result that many apparent innovations could have rested on old practices and precedents.

History supported the decision in boyd v. united states (1886) connecting the Fifth and fourth amendments and holding that the seizure of one's records for use as evidence against him compels him to be a witness against himself. Beginning in the early eighteenth century the English courts had widened the right against self-incrimination to include protection against the compulsory production of books and papers that might incriminate the accused. In a 1744 case a rule emerged that to compel a defendant to turn over the records of his corporation would be forcing him to "furnish evidence against himself." In the 1760s in wilkes ' scases, the English courts extended the right to prevent the use of general warrants to seize private papers in seditious libel cases. Thus the right against self-incrimination and freedom of the press, closely allied in their origins, were linked to freedom from unreasonable searches and seizures. In Entick v. Carrington (1765), Lord Camden (charles pratt) declared that the law obliged no one to give evidence against himself "because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem that search for evidence is disallowed upon the same principle." American colonists made similar arguments against writs of assistance, linking the right against unreasonable search to the right against self-incrimination. united states v. white (1944), which required the production of an organization's records even if they incriminated the witness who held them as custodian, was a departure from history.

That the right extends to witnesses as well as the accused is the command of the text of the Fifth. Protection of witnesses, which can be traced to English cases of the mid-seventeenth century, was invariably accepted in American manuals of practice as well as in leading English treatises throughout the eighteenth century. The Supreme Court's decision in McCarthy v. Arndstein (1924), extending the right to witnesses even in civil cases if a truthful answer might result in a forfeiture, penalty, or criminal prosecution, rested on dozens of English decisions going back to 1658 and to American precedents beginning in 1767. In a little known aspect of marbury v. madison (1803), Chief Justice john marshall asked Attorney General levi lincoln what he had done with Marbury's missing commission. Lincoln, who probably had burned the commission, refused to incriminate himself by answering, and Marshall conceded that he need not reply, though he was a witness in a civil suit.

Many early state decisions held that neither witnesses nor parties were required to answer against themselves if to do so would expose them to public disgrace or infamy. The origins of so broad a right of silence can be traced as far back as sixteenth-century claims by Protestant reformers such as William Tyndale and Thomas Cartwright in connection with their argument that no one should be compelled to accuse himself. The idea passed to the common lawyers and Coke, was completely accepted in English case law, and found expression in william blackstone'sCommentaries as well as American manuals of practice. Yet the Supreme Court in brown v. walker (1896) restricted the scope of the historical right when ruling that the Fifth did not protect against compulsory self-infamy. Its decision was oblivious to history as was its reaffirmation of that decision in Ullmann v. United States (1956). From the standpoint of history that 1896 holding and its 1956 reaffirmation correctly decided the main question whether a grant of full immunity supersedes the witness's right to refuse answer on Fifth Amendment grounds. Colonial precedents support absolute or transactional immunity, as did the immunity grant decisions in 1896 and 1956. The Court departed from its own precedents and history when ruling in kastigar v. united states (1972) that limiting the right to use and derived-use immunity does not violate the right not to be a witness against oneself.

History supports the decisions made by the Court for the first time in Quinn v. United States (1955) and watkins v. united states (1957) that the right extends to legislative investigations. As early as 1645 John Lilburne, relying on his own reading of Magna Carta and the petition of right, claimed the right, unsuccessfully, before a parliamentary committee. In 1688 the Pennsylvania legislature recognized an uncooperative witness's right against self-incrimination. Other colonial assemblies followed suit though New York's did not do so until forced by public opinion after McDougall's case. That Parliament also altered its practice is clear from the debates in 1742 following the refusal of a witness to answer incriminatory questions before an investigating committee. The Commons immunized his testimony against prosecution, but the bill failed in the Lords in part because it violated one of the "first principles of English law," that no person is obliged to accuse himself or answer any questions that tend to reveal what the nature of his defense requires to be concealed. In 1778 the Continental Congress investigated the corrupt schemes of Silas Deane, who invoked his right against self-incrimination, and Congress, it seems, voted that it was lawful for him to do so.

History belies the two-sovereignties rule, a stunting restriction upon the Fifth introduced by the Court in 1931 but abandoned in murphy v. waterfront commission (1964). The rule was that a person could not refuse to testify on the grounds that his disclosures would expose him to prosecution in another jurisdiction. The Court mistakenly claimed that the rule had the support of historical precedents; history clearly contradicted that rule as the Court belatedly confessed in 1964.

History supports the rule of Bram v. United States (1897) that in criminal cases in the federal courts—this was extended by malloy v. hogan (1964) to the state courts, too—whenever a question arises whether a confession is incompetent because it is involuntary or coerced, the issue is controlled by the self-incrimination clause of the Fifth. Partly because of john h. wigmore's intimidating influence and partly because of the rule of Twining denying that the fourteenth amendment extended the Fifth to the states, the Court until 1964 held that the coercion of a confession by state or local authorities violated due process of law rather than the right against self-incrimination. Wigmore, the master of evidence, claimed that the rule against coerced confessions and the right against self-incrimination had "no connection," the two being different in history, time or origin, principle, and practice.

Wigmore was wrong. From the fact that a separate rule against coerced confessions emerged in English decisions of the eighteenth century, nearly a century after the right against self-incrimination had become established, he concluded that the two rules had no connection. That the two operated differently in some respects and had differing rationales in other respects led him to the same conclusion. But he focused on their differences only and so exaggerated those differences that he fell into numerous errors and inconsistencies of statement. The relationship of the two rules is apparent from the fact that the shadow of the rack was part of the background from which each rule emerged. The disappearance of torture and the recognition of the right against compulsory self-incrimination were victories in the same political struggle. The connections among torture, compulsory self-incrimination, and coerced confessions was a historical fact as well as a physical and psychological one. In the sixteenth and seventeenth centuries, the argument against the three, resulting in the rules that Wigmore said had no connection, overlapped. Compulsory self-incrimination was always regarded by its opponents as a species of torture. An act of 1696 regulating treason trials required that confessions be made willingly, without violence, and in open court. The quotation above from Geoffrey Gilbert disproves Wigmore's position. When the separate rule against coerced confessions emerged, its rationale was that a coerced confession is untrustworthy evidence. There remained, however, an indissoluble and crucial nexus with the right against self-incrimination because both rules involved coercion or the involuntary acknowledgment of guilt. Significantly the few references to the right against self-incrimination, in the debates on the ratification of the Constitution, identified the right with a protection against torture and inquisition, that is, against coerced confessions. Wigmore fell into error by assuming that the right against self-incrimination had a single rationale and a static meaning. In fact it always had several rationales, was an expanding principle of law, and spun off into different directions. One spin-off was the development of a separate rule against coerced confessions. If there was "an historical blunder," it was made by the English courts of the eighteenth century when they divorced the confessions rule from the self-incrimination rule.

History is not clear on the Court's distinction between testimonial compulsion, which the Fifth prohibits, and nontestimonial compulsion, which it does not prohibit. Blood samples, photographs, fingerprints, voice exemplars, and most other forms of nontestimonial compulsion are of modern origin. The fact that the Fifth refers to the right not to be a witness against oneself seems to imply the giving of testimony rather than keeping records or revealing body characteristics for identification purposes. The distinction made by the Court in schmerber v. california (1966) was reasonable. Yet, limiting the Fifth to prohibit only testimonial compulsion poses problems. The accused originally could not testify at all, and the history of the right does not suggest the Schmerber limitations. The common law decisions and the wording of the first state bills of rights explicitly protected against compelling anyone to give or furnish "evidence" against himself, not just testimony.

The fact that history does not support some of the modern decisions limiting the scope of the right hardly means that history always substantiates decisions expanding it. Decisions like Slochower v. Board of Education (1956) and garrity v. new jersey (1967), which protect against penalizing the invocation of the right or chilling its use, draw no clear support from the past. Indeed, the decision in griffin v. california (1965) which prohibited comment on the failure of a criminal defendant to testify on ground that such comment "is a remnant of the inquisitorial system" is historically farfetched.

Finally, history is ambiguous on the controversial issue whether the right against self-incrimination extends to the police station. When justices of the peace performed police functions and conducted the preliminary examination of suspects, their interrogation was inquisitorial in character (as it is in the interrogation rooms of modern police stations) and it usually had as its object the incrimination of the suspect. Yet he could not be examined under oath, and he did have a right to withhold the answer to incriminating questions. On the other hand, he had no right to be told that he need not answer or be cautioned that his answers could be used against him. However, the right against self-incrimination grew out of a protest against incriminating interrogation prior to formal accusation. That is, the maxim nemo tenetur seipsum prodere originally meant that no one was obligated to supply the evidence that could be used to indict him. Thus, from the very inception of the right, a suspect could invoke it at the earliest stages of his interrogation.

In miranda v. arizona (1966) the Supreme Court expanded the right beyond all precedent, yet not beyond its historical spirit. Miranda's purpose was to eliminate the inherently coercive and inquisitional atmosphere of the interrogation room and to guarantee that any incriminating admissions are made voluntarily. That purpose was, historically, the heart of the Fifth, the basis of its policy. Even the guarantee of counsel to effectuate that purpose has precedent in a historical analogy: the development of the right to counsel originally safeguarded the right against self-incrimination at the trial stage of prosecution. When the defendant lacked counsel, he had to conduct his own case, and although he was not put on the stand and did not have to answer incriminating questions, his failure to rebut accusations and insinuations by the prosecution prejudiced the jury, vitiating the right to silence. The right to counsel permitted the defendant's lips to remain sealed; his "mouthpiece" spoke for him. In Miranda the Court extended the protection of counsel to the earliest stage of a criminal action, when the need is the greatest because the suspect is most vulnerable.

Nevertheless, the Miranda warnings were an invention of the Court, devoid of historical support. Excepting rare occasions when judges intervened to protect a witness against incriminatory interrogatories, the right had to be claimed or invoked by the person seeking its protection. Historically it was a fighting right; unless invoked it offered no protection. It did not bar interrogation or taint an uncoerced confession as improper evidence. Incriminating statements made by a suspect could always be used at his trial. That a person might unwittingly incriminate himself when questioned in no way impaired his legal right to refuse answer. He lacked the right to be warned that he need not answer; he lacked the right to have a lawyer present at his interrogation; and he lacked the protection of the strict waiver requirements that now accompany the miranda rules. From a historical view, the decision in brewer v. williams (1977) and the limits on interrogation imposed by rhode island v. innes (1980) extraordinarily inflate the right. What was once a fighting right has become a pampered one. Law should encourage, not thwart, voluntary confessions. The Fifth should be liberally construed to serve as a check on modern versions of the "third degree" and the spirit of McCarthyism, but the Court should distinguish rapists and murderers from John Lilburne and realize that law enforcement agencies today are light years away from the behavior revealed in brown v. mississippi (1936) and chambers v. florida (1940).

The Court said in palko v. connecticut (1937) that the right against compulsory self-incrimination was not a fundamental right; it might be lost, and justice might still be done if the accused "were subject to a duty to respond to orderly inquiry." Few would endorse that judgment today, but it is a yardstick for measuring how radically different the constitutional law of the Fifth became in half a century.

History surely exalts the right if precedence be our guide. It won acceptance earlier than did the freedoms of speech, press, and religion. It preceded a cluster of procedural rights such as benefit of counsel. It is older, too, than immunities against bills of attainder, ex post facto laws, and unreasonable searches and seizures. History also exalts the origins of the right against self-incrimination, for they are related to the development of the accusatorial system of criminal justice and the concept of fair trial; to the principle that fundamental law limits government—the very foundation of constitutionalism; and to the heroic struggles for the freedoms of the first amendment. History does not, however, exalt the right against the claims of justice.

Leonard W. Levy
(1986)