Taking the fifth: reconsidering the origins of the constitutional privilege against self-incrimination.

• Author: Moglen, Eben

INTRODUCTION

Modern criminal procedure in the common law jurisdictions has few distinguishing features as significant as the defendant's strong privilege against becoming a testimonial resource in a criminal investigation or trial. This is particularly true in the United States, where the interpretation of the Fifth Amendment's familiar wording(1) guarantees that objects of police investigation will be warned prophylactically against testimonial cooperation with the police and protects against adverse commentary on failure to testify at trial.(2) Perhaps because of its contemporary significance, historical scholarship has tended to locate the origin of the privilege deep in the libertarian tradition of the common law. Our greatest scholar in the law of evidence first set forth these interpretive assumptions, finding the origin of a right against self-incriminatory questioning in the legacy of resistance to the prerogative justice of the Stuart monarchy during the second quarter of the seventeenth century.(3) Following this approach, Leonard Levy traces a line of descent for this "right" from Puritan and Leveller resistance movements in the 1630s and 1640s through the Glorious Revolution, and on to the adoption of the American Bills of Rights in state and federal constitutions of the 1770s and 1780s.(4)

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, the constitutional provisions of the late eighteenth century protecting against compulsory self-incrimination were not final acknowledgments of a long-accepted "fundamental right." They were instead reflections of the contentious prerevolutionary constitutional debate, in which North American advocates made sweeping and often antiquarian legal claims protecting or expanding their power to resist Imperial control. The privilege against giving compelled self-incriminatory testimony was one of several common law doctrines to which the Americans gave far more rhetorical than practical respect during this period because it was ancillary to one of their central concerns -- the constitutional function of the jury trial in limiting governmental power. The enactment of constitutions containing sweeping endorsements of the privilege seems to have had little or no immediate effect on contrary practice in the new states. By examining the activities of defense counsel, however, we can begin to trace the gradual adjustment of the criminal procedure system in the second and third decades of the nineteenth century.

Taken together, these points suggest a substantial revision of the standard narrative of the privilege in early American legal and constitutional history. The American evidence, in turn, sheds substantial light on other recent scholarly controversy concerning the history of the privilege in English law. Before turning to the consideration of the American evidence, some attention should be given to this wider historiographic context.

1. The Priviledge And The Historians -- Recent Developments

   Recent scholarship has done much to cast doubt on the correctness of the received wisdom concerning the history of the common law privilege. Richard Helmholz and Michael Macnair have demonstrated independently that the antique tag, nemo tenetur seipsum prodere -- in which the traditional account has descried the root of the common law's unique hostility to "inquisitorial" process -- is instead an expression of the jus commune. As such, it was closely identified with developments in late medieval canon law and was adopted into the common law by convergence.(5) Charles Gray has demonstrated that the complex history of jurisdictional confrontation between conciliar and common law courts in the seventeenth century and the sedition actions against John Lilburne and others during the period of the English Revolution have been misread by those seeking to find what Leonard Levy called "the establishment of the right."(6) Finally, John Langbein has drawn upon his own and other scholarship in eighteenth-century English trial records to argue that the privilege against self-incrimination, at least so far as criminal defendants are concerned, is an outgrowth of the epochal change in criminal procedure during the eighteenth century, as defense counsel entered the criminal courts.(7) Counsel, Langbein argues, turned a system directed at getting the defendant to attempt rebuttal of the adverse evidence into one in which the prosecutor was expected to prove his case, beyond a reasonable doubt, in the face of a learnedly uncooperative defense. This reversal of the nature of the criminal trial had as one of its consequences the creation of a right against coercive self-incrimination; it replaced a system in which, Langbein might say, self-incrimination was the whole point.

   This revised history of the privilege, like the received wisdom it seeks to replace, must withstand a critical test in the early American records. If, under the received wisdom, the right was recognized in the era of John Lilburne and enshrined in the sequel to the Glorious Revolution, its invocations should be visible in the colonial records of British North America at least in the eighteenth century, and perhaps even in the late seventeenth century. If, however, the English privilege developed in the eighteenth century through intervention by defense counsel and replaced a system structurally biased in the opposite direction, we should see little of the "right" in colonial records so long as defense counsel are absent.

   Any account of the history of the privilege based on the changing shape of the criminal trial brought about by defense counsel must also answer another serious question. How did the Americans -- whose legal profession was necessarily less highly developed than that of the metropolis in the colonial period -- come to treat the privilege as a constitutional right as early as the mid-1770s?

   Reconsideration of the American developments is thus crucial to our understanding of the history of the privilege. Much essential research has not yet been done -- only for colonial New York do we possess a detailed qualitative reconstruction of the criminal justice system -- but the weight of available evidence is strongly against the received wisdom. In brief, the records of the colonial legal orders in the seventeenth century, like those of England, show the predominance of what John Langbein calls the "accused speaks"(8) elements of the old criminal procedure, in which the notion of a defendant's privilege against self-incrimination was anathema. Pretrial process, which effectively determines the possibility of defendants' silence at trial, followed the English models that inhibited rather than furthered the privilege. Counsel infrequently appeared in felony cases until the end of the colonial period even in New York, where the profession reached the highest degree of prerevolutionary development and influence. In misdemeanor proceedings, where counsel were theoretically available, administrative and economic considerations largely precluded defense counsel from having a major effect on investigative and trial procedures.

   Yet the Americans did adopt constitutional provisions protecting against coercive self-incrimination at a comparatively early date. The paradox is only apparent. The constitutional provisions were intended conservatively, protecting against practices or institutions that Americans saw as possible innovations by a tyrannical government. The ambiguities surrounding the nemo tenetur maxim, the wary attitudes toward oaths held by American sectarians, and the "rights antiquarianism" of the American revolution all contributed to the drafting of such provisions. But the provisions were not treated, at least initially, as requiring variation of existing local practice. In those states that did enact such constitutional provisions, the effect on the existing criminal procedure system is difficult to discern. New Yorkers, who had enacted no guarantee of their own, saw no conflict in recommending such a protection in the federal Bill of Rights. Rather than "baffling" interpretation, as the leading voice of the received wisdom has it,(9) the legal positions of the New Yorkers epitomize the history of the privilege against self-incrimination. It is not the story of a timeless natural right, growing in recognition as society became more "free." Instead, the history of the privilege reveals how procedure makes substance, and how legal evolution, like natural selection itself, adapts old structures to new functions. If the revised account is less heroic, it nonetheless brings us closer to the real mechanisms of legal development.

2. Early Modern Criminal Procedure In America

   The legal systems of British North America came into existence over a period of more than a century, from the foundation of the Jamestown colony in 1607 through the organization of Georgia in the 1730s. The diversity of conditions of settlement -- including religious belief, ethnic composition, and socioeconomic structure -- makes it impossible to treat "colonial American law" as an entity. Moreover, the obscurity of the sources increases the difficulties involved in describing those legal systems. Records of criminal justice at the lowest levels are scant in almost all jurisdictions, and even the higher levels are documented in an incomplete fashion...