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The Self-incrimination Approach—historical Background

In 1966, the Supreme Court decided Miranda v. Arizona (384 U.S. 436 (1966)), one of the most famous decisions in its history. Miranda is best known for the warnings that take its name. As a doctrinal matter, however, the case is most important for shifting the Court's focus from due process and Sixth Amendment concerns to an analysis resting on compelled self-incrimination. In order to understand how this shift was accomplished, it is necessary briefly to review the history and structure of the self-incrimination guarantee.

Although the concern about self-incrimination can be traced back to Talmudic law and early Christian thinking, the modern privilege developed out of the events preceding the English Civil War in the mid-seventeenth century. Ecclesiastical courts—most notoriously the High Commission and the Star Chamber—utilized an "oath ex officio" in an effort to squelch religious dissent, mostly by Catholics and Puritans. The oath required the suspect to answer all questions truthfully, although the suspect did not know in advance what questions would be asked, and the authorities were not required to have a basis to believe that the suspect was guilty of any particular crime.

According to the standard view, associated with the scholarship of Leonard Levy, these courts were challenged by common law judges, in particular Edward Coke, who relied on the Latin maxim nemo tenetur prodere seipsum (no man is bound to accuse himself). More recent scholarship by Richard Helmholtz and John Langbein has thrown some doubt on this account. Helmholtz argues that objections to the oath officio were grounded in Roman canon law and European ius commune, rather than the English common law. Langbein has argued that the nemo tenetur maxim was in force only in political trials and had no effect on ordinary criminal trials until defense counsel was introduced on a regular basis over a century later.

However this may be, the colonists were surely aware of the English struggle over self-incrimination. It did not follow that they embodied this principle in their own criminal prosecutions, however. On the contrary, Eben Moglen has shown that early American criminal procedure was dominated by an "accused speaks" model. An investigating magistrate interrogated the accused who, without benefit of counsel, often confessed to criminal acts.

To be sure, state bills of rights, adopted in the 1770s and 1780s, often contained a privilege against self-incrimination. For example, section 8 of the Virginia Declaration of Rights, written by George Mason, provided "that in all capital and criminal prosecutions a man [cannot be] compelled to give evidence against himself." But Moglen argues that these provisions were meant merely to protect existing arrangements against British retrenchment, not to reform them. Accordingly, compelled incrimination before justices of the peace remained the norm.

When the 1787 Constitution was placed before the states for ratification, over half the ratifying states recommended amendments, and four conventions—Virginia, New York, North Carolina, and Rhode Island—recommended inclusion of versions of section 8 of the Virginia Declaration of Rights. After ratification, James Madison, initially an opponent of a bill of rights, introduced such a bill in the House of Representatives. Included in his proposal was a provision stating in part that "No person . . . shall be compelled to be a witness against himself." John Laurence, a congressman from New York, moved that Madison's language be changed so as to limit the protection to criminal cases because it was "a general declaration in some degree contrary to laws passed." There was no opposition to this change, and the self-incrimination provision, as so amended, passed the House of Representatives unanimously. The Senate thereupon passed the provision without making any substantive change. With little debate, the states ratified the provision along with the rest of the Bill of Rights.

There is little evidence, however, that the Amendment had much immediate effect on criminal practice. At the time of its adoption, defendants were not permitted to give sworn testimony in their own defense, so there was little controversy about compulsion to testify. Defendants continued to be brought before magistrates, who placed considerable pressure upon them to cooperate with the prosecution. It was not until the 1820s, with the widespread introduction of defense counsel, that this practice began to die out.

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Law Library - American Law and Legal InformationCrime and Criminal LawConfessions - The Role Of Confessions, The Voluntariness Approach, The Right To Counsel Approach, The Self-incrimination Approach—historical Background