The historical origins of the privilege against self-incrimination at common law.

• Author: Langbein, John H.

The appearance of the privilege against self-incrimination -- the guaranty that no person "shall be compelled in any criminal case to be a witness against himself"(1) -- was a landmark event in the history of Anglo-American criminal procedure. Prior historical scholarship has located the origins of the common law privilege in the second half of the seventeenth century, as part of the aftermath of the constitutional struggles that resulted in the abolition of the courts of Star Chamber and High Commission. This essay explains that the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel.

From the middle of the sixteenth century, when sources first allow us to glimpse the conduct of early modern criminal trials,(2) until late in the eighteenth century, the fundamental safeguard for the defendant in common law criminal procedure was not the right to remain silent, but rather the opportunity to speak. The essential purpose of the criminal trial was to afford the accused an opportunity to reply in person to the charges against him. Among the attributes of the procedure that imported this character to the criminal trial, the most fundamental was the rule that forbade defense counsel. The prohibition upon defense counsel was relaxed in stages from 1696 until 1836, initially for treason, then for felony. Although persons accused of ordinary felony began to be allowed counsel in the 1730s, defense counsel did not become quantitatively significant until the 1780s.(3)

In the later eighteenth century and especially in the nineteenth century, a radically different view of the purpose of the criminal trial came to prevail. Under the influence of defense counsel, the criminal trial came to be seen as an opportunity for the defendant's lawyer to test the prosecution case. The privilege against self-incrimination entered common law procedure (together with the beyond-reasonable-doubt standard of proof and the exclusionary apparatus of the modern law of criminal evidence) as part of this profound reordering of the trial. It was the capture of the criminal trial by lawyers for prosecution and defense that made it possible for the criminal defendant to decline to be a witness against himself.

As a convenient shorthand, and with apology for the inelegance of the terms, I shall contrast these two conceptions of the criminal trial as the older "accused speaks" theory and the newer "testing the prosecution" theory. So long as the older view of the purpose of the trial held sway, the defendant's refusal to respond to the incriminating evidence against him would have been suicidal. Without counsel, the testimonial and defensive functions were inextricably merged, and refusing to speak would have amounted to a forfeiture of all defense. The sources show that criminal defendants did not in fact claim any such self-destructive right. Until the later eighteenth century, for almost all criminal defendants, defending meant responding in person to the details of the accusation. Only with the ascendance of defense counsel did the "testing the prosecution" trial develop, and only then did it become possible to speak of a privilege against self-incrimination in common law criminal procedure.

Part I of this essay discusses the several attributes of early modern criminal procedure that combined, until the end of the eighteenth century, to prevent the development of the common law privilege. Part II explains how prior scholarship went astray in locating the common law privilege against self-incrimination in the wrong events and in the wrong century.

1. The "Accused Speaks" Trial

   In order for a privilege against self-incrimination to function, the criminal defendant must be in a position to defend by proxy. If the defendant is to have a right to remain silent that is of any value, he must be able to leave the conduct of his defense to others. By constricting the use of defense witnesses and defense counsel, common law criminal procedure in the early modern period effectively closed off most avenues of defense-by-proxy. Undergirding the criminal procedure of the early modern trial at common law was a set of rules and practices whose purpose and effect were to oblige the accused to respond to the charges against him.

   The "accused speaks" trial was already thoroughly entrenched in the 1550s and 1560s, when the historical sources first allow us to see how English criminal trials were conducted. In the treason trial of Sir Nicholas Throckmorton (1554), the plucky defendant complains of many aspects of the procedure to which he is subjected, but not about the incessant questioning from the bench and from prosecuting counsel.(4) Sir Thomas Smith, in the notable Elizabethan tract, De Republica Anglorum,(5) describes a hypothetical criminal trial held at provincial assizes about the year 1565. Smith depicts the defendant engaged in a confrontational dialogue with the victim and accusing witnesses, responding immediately to each new item of prosecution evidence. Functioning without the aid of counsel and speaking unsworn, Smith's criminal defendant replies insistently to the questioning and to the testimony of his accusers. After the victim of a robbery testifies to his version of the events, then "the thief will say no, and so they stand a while in altercation . . . ."(6) This famous image of the accused and accuser "in altercation" about the events exemplifies the "accused speaks" trial, the trial whose purpose was to provide the accused an opportunity to explain away the prosecution case.

   1. Denial of Defense Counsel

      The bedrock principle of criminal procedure that underlay the "accused speaks" trial was that a person accused of serious crime(7) was forbidden to have defense counsel. Various justifications were put forth for this rule.(8)

      1. Court as Counsel

         It was dogma that the court was meant to serve as counsel for the prisoner.(9) Alas, in many of the great political cases of the sixteenth and seventeenth centuries, the behavior of the bench scarcely bespoke fidelity to the interests of the defendant. For example, Bromley, the presiding judge in Throckmorton's trial, joins the prosecuting counsel, Stanford, in urging Throckmorton to confess the charges, assuring Throckmorton that "it will be best for you."(10) In John Lilburne's 1649 trial, the presiding judge, Keble, having heard the prosecution case mounted by the attorney general but not yet having heard Lilburne's defense, announces to the jury: "I hope the Jury hath seen the Evidence so plain and so fully, that it doth confirm them to do their duty, and to find the Prisoner guilty of what is charged upon him."(11) Most of us would hope that our defense counsel could do somewhat better by us.

         The Tudor-Stuart bench had its own problems in this turbulent era. Until 1701, judges held office at the pleasure of the crown;(12) the tradition of secure judicial independence lay in the future. Thus, remarked John Hawles in a famous tract published in 1689 after the overthrow of James II, the Stuart political trials had revealed that the judges "generally have betrayed their poor Client, to please, as they apprehended, their better Client, the King . . . ."(13)

         The judges safeguarded the interests of the accused more responsibly in cases of nonpolitical crime. Because such trials go largely unnoticed in the State Trials(14) and other law reports of the period, what we know of these cases of routine crime comes mostly from the problematic pamphlet accounts of Old Bailey trials and Surrey assize proceedings.(15) The ordinary criminal case lacked prosecution counsel as well as defense counsel. Accordingly, it was the task of the trial judge to help the accuser establish the prosecution case(16) as well as to be "counsel for the defendant" in the peculiar and restricted sense being described.

         The defendant's supposed entitlement to have the trial judge serve as his defense counsel was limited to matters of law, not fact. "[T]he court . . . are to see that you suffer nothing for your want of knowledge in matter of law," Chief Justice Hyde told a treason defendant in 1663, explaining the limits of the court's duty "to be of counsel with you."(17) John Beattie captures the matter with great insight, observing that the idea that the court would be counsel for the defendant meant "that the judges would protect defendants against illegal procedure, faulty indictments, and the like. It did not mean that judges would help the accused to formulate a defense or act as their advocates."(18) Indeed, the idea of the court as counsel "perfectly expresses the view that the defendant should not have counsel in the sense that we would mean."(19) Consequently, "accused felons had to speak in their own defense and to respond to prosecution evidence as it was given, and as they heard it for the first time. If they did not or could not defend themselves, no one would do it for them."(20)

         The judges did intervene on occasion to help the defendant in the realm of fact, mainly by cross-examining a suspicious prosecution witness when the defendant appeared ineffectual. But these initiatives were episodic and unpredictable. "Judges were only occasionally moved to engage in vigorous cross-examinations . . . . For the most part they took the evidence as they found it . . . . They certainly did not prepare in detail for examination and cross-examination; they were not briefed."(21) Thus, although the judges had no reason to persecute wrongfully accused persons, neither had the judges any particular incentive to be vigilant on behalf of defendants. In fact, the judges had a considerable incentive to conduct trials in a fashion that would not interfere with the orderly processing of their large...