Should we abolish the constitutional privilege against self-incrimination?

• Author: Inbau, Fred E.
• Position: Originally published in Journal of Criminal Law and Criminology, vol. 45, p. 180, 1954 - Reprint

Until the televised Kefauver Committee hearings several years ago, relatively few people knew that there was such a thing as the constitutional privilege, against self-incrimination. At that time this little lesson in civics came to the great mass of citizens in a rather sordid fashion. They learned it from the lips of gangsters like Tony Accardo, Joe Adonis, Joe Aiuppa, and Jack "Greasy Thumb" Guzik. As these fellows invoked their constitutional privilege in refusing to testify, some of them had difficulty in just parroting the words which their lawyers had written down for them to read when they took the witness stand. Although one hoodlum had been thoroughly coached as to what to say when he claimed his privilege of not incriminating himself, he mauled his statement rather badly when he said, "I refuse to answer on the ground that I might discriminate myself." They all knew, of course, that in this country no person can be required to testify or give evidence against himself, and that everyone--including a gangster--has the right to remain silent and say nothing regarding the crime for which he is suspected or accused. That fact is rather picturesquely recorded in the official report of the Kefauver Committee hearings. In it the reader will find this notation with reference to Joe Aiuppa: "Let the record show that the witness just sits there mute, chewing gum, saying nothing."(1)

Once again we are hearing a great deal about the self-incrimination privilege. During the recent Congressional hearings regarding Communist activities, there were daily reports in the press about witnesses who refused to testify because of a fear of self-incrimination. A number of such persons were at one time trusted officials in our Federal Government and many were other public employees or teachers in our tax supported institutions. When asked about their Communist affiliations or subversive activities, their answers were the same as the gangsters before the Kefauver Committee: "I refuse to answer on the ground I might incriminate myself."

Faced with this dual menace of Communism and gangsterism, many citizens have been asking themselves: Why should we accord such a privilege to the Communist, who is out to destroy the very government that gives him this right to refuse to answer incriminating questions? Why should we place this same protective cloak around the hoodlum who is himself no respecter of the rights or privileges of anyone else, and who is just as serious a menace to our democracy as his international gangster counterpart working under the direction of Moscow? If a person is innocent of the charge against him, why should he refuse to answer questions? And if he is guilty, why let him refuse?

The decisions we reach in this matter and the thinking we indulge in regarding these issues may be of tremendous consequence. Any judgment arrived at on the basis of aroused emotions rather than intelligent reasoning may well destroy the very thing we are trying to preserve--democracy itself.

How, then, did this privilege against self-incrimination ever come about? And why do we retain it in these critical times?

1. HISTORY AND POLICY OF PRIVILEGE

   For several hundred years prior to the founding of the American colonies, the English people were subjected to interrogation practices by which anyone could be...