Origins of the Privilege Against Compelled Self-Incrimination

• Jurisdiction: Maryland

II. Origins of the privilege against compelled self-incrimination

The exact origin of the privilege against compelled self-incrimination is unclear. Compare Leonard W. Levy, Origins of the Fifth Amendment & Its Critics, 19 Cardozo L. Rev. 821 (1997), with R.H. Helmholz, Origins of the Privilege Against Self-Incrimination: The Role of the European Ius Commune, 64 N.Y.U. L. Rev. 962 (1990); M.R.T. Macnair, The Early Development of the Privilege Against Self-Incrimination, 10 Oxford J. Legal Stud. 66 (1990).

Looking at the history surrounding adoption of the Fifth Amendment does not show the founders' understanding of the privilege. In Akil R. Amar & Renee B. Lettow, Fifth Amendment Principles: The Self-Incrimination Clause, 93 Mich. L. Rev. 857 (1995), the authors stated:

The Self-Incrimination Clause of the Fifth Amendment is an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights. From the beginning, it lacked an easily identifiable rationale; in 1789, the words of the clause were more a slogan than a clearly defined legal rule . . . Today, things are no better: the clause continues to confound and confuse. Because courts and commentators have been unable to deduce what the privilege is for, they have failed to define its scope and in the most logical and sensible way.

Id. at 857-58. Moreover, courts did not begin to grapple with the implications of the Clause until decades after its ratification. In John F. Witt, Making the Fifth: The Constitutionalization of American Self-Incrimination Doctrine, 1791-1903, 77 Tex. L. Rev. 825 (1999), the author stated:

Up until the

...