A peculiar privilege in historical perspective: the right to remain silent.

• Author: Alschuler, Albert W.

1. INTRODUCTION: TWO VIEWS OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

   Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person "shall be compelled in any criminal case to be a witness against himself."(1) The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation -- a view that countless repetitions of the Miranda warnings have impressed upon the public -- asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward her decision not to speak. In the Supreme Court's words, "[T]he privilege is fulfilled only when the person is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will.'"(2) He must have a "`free choice to admit, to deny, or to refuse to answer.'"(3) The Fifth Amendment dictates an "accusatorial system," one requiring "the government in its contest with the individual to shoulder the entire load."(4) On this view, the concept of waiving the privilege seems unproblematic; one might waive a right to remain silent for many plausible reasons.

   On the Court's second interpretation, the Self-Incrimination Clause does not protect an accused's ability to remain silent but instead protects him only from improper methods of interrogation.(5) This second interpretation emphasizes the word "compelled," a word that appears upon first reading to express the Self-Incrimination Clause's core concept. In ordinary usage, compulsion does not encompass all forms of persuasion. A person can influence another's choice without compelling it; to do so she need only keep her persuasion within appropriate bounds of civility, fairness, and honesty. Compulsion is an open-ended concept encompassing only improper persuasive techniques.(6) On this view of the Self-Incrimination privilege, the concept of waiver of the privilege becomes paradoxical. Although a defendant or suspect might sensibly waive a right to remain silent, few sane adults would waive a right to be free of compulsion.(7)

   The two opposing interpretations of privilege advance different interests,(8) but the practical difference between them may not be enormous. Like affording a right to silence, forbidding improper means of interrogation protects against torture, other abusive interrogation techniques, and imprisoning someone for refusing to incriminate herself. The clash between the two interpretations centers mostly on whether a fact finder may appropriately treat the refusal of a suspect or defendant to speak as one indication of her guilt. Griffin v. California,(9) in which the Supreme Court held that the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt,"(10) focused the choice between the two competing interpretations more sharply than any other Supreme Court decision has.

   Justice Douglas's majority opinion in Griffin invoked the language of unconstitutional conditions, declaring that comment "is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly."(11) Justice Stewart's dissenting opinion replied that "[c]ompulsion is the focus of the inquiry" and that "the Court in this case stretches the concept of compulsion beyond all reasonable bounds."(12)

   Although the majority and dissenting justices in Griffin divided over which view of the Fifth Amendment privilege to endorse, the Court's opinion in Miranda v. Arizona(13) the following year embraced both. The first Miranda warning -- "You have a right to remain silent" -- strongly indicated the Court's approval of the "right to silence" interpretation of the Fifth Amendment. So did the Court's expansive accusatorial rhetoric(14) and its demand for a knowing and intelligent waiver of the privilege as a prerequisite to the admission of any statement made by a suspect at the stationhouse.(15)

   The Court, however, did not direct law enforcement officers to provide the Miranda warnings whenever they asked a person suspected of a crime to incriminate herself. Only suspects in custody were entitled to the warnings,(16) and the Court referred to the "inherently compelling nature" of custodial interrogation. This language and other aspects of the Miranda opinion -- for example, the Court's discussion of the stratagems that interrogation manuals encouraged law enforcement officers to use while questioning suspects -- suggested that the Court was still concerned with the quality and extent of the pressure brought to bear upon suspects and that the Fifth Amendment might not prohibit every inducement to speak. At the same time, much of the Court's discussion of stationhouse interrogation indicated that it was compelling only because it undercut the right to remain silent. A reader attempting to infer from Miranda whether the Fifth Amendment mandated neutrality toward a suspect's decision to remain silent could become confused.

   No one really knows what Miranda means. In recent decades, the Supreme Court has insisted repeatedly that the "prophylactic Miranda warnings ...are `not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory Self-Incrimination [is] protected.'"(17) The Court thus has appeared to suggest that the Miranda warnings are not constitutionally required, but the Court plainly has no authority under the Constitution to reverse state court decisions that comply with federal law.(18) The off-hand assertion of a supervisory power over the administration of state criminal justice would have been startling, and one hesitates to attribute this assertion to the Supreme Court.(19) The claim that the Miranda warnings were constitutionally required for prophylactic reasons, however, would have been less disturbing. As David Strauss has noted, the Supreme Court often has articulated prophylactic rules to increase the probability that America's constitutional law in action will correspond to its constitutional law on parchment.(20) Perhaps Miranda excludes uncompelled confessions in some cases to prevent compulsion in other cases,(21) and perhaps the Miranda warnings advise suspects misleadingly that they have a right to remain silent in order to protect the different right that the Constitution guarantees them, the right to be free of compulsion.(22)

   The Miranda opinion gave at least lip service to the literal "compulsion" interpretation of the Fifth Amendment. Post-Miranda decisions, moreover, have permitted prison officials to treat a suspect's silence as an indication of his guilt in prison disciplinary proceedings(23) and have allowed prosecutors to impeach the testimony of defendants at trial by showing their earlier failures to speak.(24) Even after Griffin and Miranda, the privilege against Self-Incrimination does not entirely ensure suspects that they will not suffer adverse consequences for refusing to speak. The tension between the two interpretations of the Fifth Amendment privilege remains unresolved.

   This article argues that as embodied in the United States Constitution, the privilege against Self-Incrimination was not intended to afford defendants a right to remain silent or to refuse to respond to incriminating questions. Its purpose was to outlaw torture and other improper methods of interrogation.

   Part II of the article reviews some familiar moral objections to affording suspects and defendants a broad right to silence and emphasizes the extent to which our current criminal justice system departs in practice from its professed accusatorial principles. Part III turns to history, tracing the path of the privilege from its possible origin 1500 years ago as a limitation on the scope of the religious obligation to confess through the decision in Miranda and beyond.

   Part III divides this history into three stages. It contends that the privilege enforced by seventeenth century common law courts against the English High Commission differed from the privilege that the framers included in the American Bill of Rights in 1791, and that neither the English nor the American version of the privilege afforded suspects and defendants a right to refuse to respond to incriminating questions. The right to remain silent emerged substantially after the framing of the Bill of Rights. Until the nineteenth century was well underway, magistrates and judges in both England and America expected and encouraged suspects and defendants to speak during pretrial interrogation and again at trial. Fact finders did not hesitate to draw inferences of guilt when defendants remained silent. The informal inducements of prenineteenth century trial procedure were, moreover, great enough that virtually every defendant did speak.

   At the same time, legal treatises and other sources in use at the time of the framing of the Bill of Rights declared incriminating questioning under oath an improper method of interrogation. They said that placing a suspect on oath was incompatible with his privilege, and they frequently analogized questioning under oath to torture.(25) In accordance with the sentiments voiced by these authorities, courts in England and America neither required nor permitted defendants to answer questions under oath.(26)

   The coercive power of an oath stemmed partly from its mystic and religious significance, a significance that modern observers may not fully appreciate. Even when judged solely in secular terms, however, oaths undoubtedly seemed coercive to the framers. Once a witness was placed on oath, her refusal to answer constituted contempt and was subject to criminal punishment. Her false answers constituted perjury. The...