§ 23.02 THE ORIGINS OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

• Jurisdiction: United States

§ 23.02. The Origins of the Privilege against Self-incrimination⁷

The origins of the Fifth Amendment Self-Incrimination Clause "lie in a tangled web of obscure historical events."⁸ According to Wigmore, the roots of the Fifth Amendment privilege against self-incrimination lie in a twelfth-century power struggle between the Crown and the Church.⁹ Leonard Levy, however, believes that this reading of history is too narrow, and that the privilege is also the result of political, constitutional, and human-rights debates that racked England during the sixteenth and seventeenth centuries.¹⁰

What seems fairly clear is that the concept of a right against self-incrimination had "become a significant feature of the common law [by] Coke's time,"¹¹ i.e., the early seventeenth century, as judges sought to limit inquisitorial interrogations conducted in the ecclesiastical courts, which investigated claims of heresy, and by the Court of Star Chamber. Under then-existing procedures, a person "could be plucked from the street,"¹² often on nothing more than a "fishing expedition[]" by an ecclesiastical court,¹³ and administered an "oath ex officio," which required the individual to answer truthfully all questions put to him by the court, even before he was informed of the nature of any charges eventually leveled against him.

The oath ex officio was abolished in 1641. Gradually, according to traditional historical accounts, opposition to the oath turned into a general rejection of the perceived "unjust, unnatural, and immoral"¹⁴ inquisitorial requirement that persons furnish evidence to convict themselves of crimes. Thus, Blackstone reported that, "at the common law, nemo tenebatur prodere seipsum [no man is bound to accuse himself]; and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men."¹⁵

This English opposition to compulsory self-accusation was imported to this country by colonists, who were ardent critics of the ecclesiastical oaths. Over time, the colonies enacted laws that prohibited the oath ex officio, as well as the use of torture to obtain confessions. By the time of the Revolution, according to Levy, the privilege was viewed by the Constitution's framers as "a self-evident truth."¹⁶

The preceding summary represents the traditional explanation of the origins of the Fifth Amendment privilege. A somewhat different historical account suggests that the Fifth Amendment privilege has less to do with the heroic battles for religious and human...