Chapter 1 The Purpose and Scope of the Fifth Amendment Right Against Compulsory Self-incrimination

• Library: The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.)

CHAPTER 1 The Purpose and Scope of the Fifth Amendment Right Against Compulsory Self-Incrimination A Very Brief History of the Fifth Amendment

An adequate exploration of the origins of the Fifth Amendment privilege against self-incrimination extends well beyond the purpose of this book. However, as with the application of any constitutional right, it helps to have at least a rudimentary understanding of the history of the language when crafting arguments regarding its application. A student of the historical development of the right against self-incrimination would be well served to spend a few hours reading Leonard W. Levy, Origins of The Fifth Amendment: The Right against Self-incrimination (1968), which remains an influential work. See McKune v. Lile, 536 U.S. 24, 56 (2002) (Stevens, J., dissenting). For a different view of the historical development of the privilege, one should read the essays collected in R. H. Helmholz, et al., The Privilege against Self-incrimination: its Origins and Development (1997). See United States v. Balsys, 524 U.S. 666, 674 n.5 (1998).

The Supreme Court traces the roots of our Fifth Amendment right against self-incrimination to the protections the English courts and Parliament granted to those religious dissenters who were compelled to take oaths when called before the ecclesiastical courts, as well as to the Court of High Commission and the Star Chamber. These bodies used the oath ex officio to force heretics from the Church of England to swear before God to truthfully answer all questions, even before the heretics knew the nature of the accusations against them. By use of the oath in conducting their investigations of religious heresy, these courts left witnesses with the "cruel trilemma" of (1) refusing to take the oath, which constituted contempt and subjected the person to torture; (2) taking the oath and telling the truth about their religious beliefs, which, if heretical, was punishable by death; or (3) taking the oath and lying, which was also punishable by death. See Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52, 55 (1964) (describing the Self-Incrimination Clause as "reflect[ing] many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt . . . ."). The ecclesiastical system countenanced methods of interrogating persons designed to lead only to confessions. See Andresen v. Maryland, 427 U.S. 463, 470 (1976) (discussing the methods of the ecclesiastical inquisitions and the Star Chamber); Griffin v. California, 380 U.S. 609, 620 (1965) (noting that a suspect refusing to testify in front of the Star Chamber suffered "incarceration, banishment and mutilation").

The English common law courts first sought to prohibit the use of the oath ex officio and the attendant inquisitorial methods of interrogating the accused by relying on the Latin maxim nemo tentetur seipsum prodere (or nemo tentetur seipsum accusare)—"no man is bound to accuse himself." See Brown v. Walker, 161 U.S. 591, 596-97 (1896) (describing the maxim as a protest against the unjust methods used to extract confessions). Parliament abolished the Court of High Commission and the Star Chamber in 1641 and in 1662 passed a law providing that "no man shall administer to any person whatsoever the oath usually called ex officio or any other oath whereby such persons may be charged or compelled to confess to any criminal matter." By the late 18th century, as the English common law courts began to recognize the presumption of innocence, trial judges in criminal cases began to afford defendants the right not to incriminate themselves, establishing the privilege against self-incrimination as a fundamental rule of evidence.

The criminal procedures developed in England were transplanted to early colonial America, where judges also adopted limits on the evidentiary use of involuntary pretrial confessions. By the latter half of the 18th century, the previous practice of administering the oath ex officio had ended in most of the colonies. After the Revolutionary War, as the colonists sought to ensure that their individual rights in the courts were protected by written constitutions, at least six states drafted constitutions containing prohibitions against compulsory self-incrimination. Section 8 of the Virginia Declaration of Rights, one of the most influential of the early constitutions, declared "that in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation . . . ; nor can...