Privilege Against Self-Incrimination

de R. H. Helmholz, Charles M. Gray, John H. Langbein, Eben Moglen

Some version of the privilege against self-incrimination - which prohibits compelling men and women to answer questions that will aid in convicting them of a crime - has existed in the Western legal tradition since at least the twelfth century. However, the privilege has taken different forms over the centuries, and its effective implementation as a basic civil liberty is much more recent. Challenging the accounts of John Henry Wigmore and Leonard W. Levy, this history of the privilege shows that it played a limited role in protecting criminal defendants before the nineteenth century. Each chapter of this study focuses on a distinct period, uncovering what the privilege meant in practice. Countering the view that the privilege was established in the common law during the course of seventeenth-century constitutional conflicts, the authors demonstrate that, although it was often stated as a principle, the privilege could not assume its current form until the development of modern criminal procedure. The authors also analyze the colonial American conception of the privilege, tracing its subsequent development through the nineteenth century and the post-Miranda era as the basis for our modern understanding. Finally, the authors consider the implications and consequences of the privilege today, when it is considered unfair to expect criminal defendants to participate actively in the criminal process. Not only do they find little historical justification for this expanded conception, but they question how well it accords with commonly accepted principles of morality. In revising our understanding of an important part of criminal and constitutional law, The Privilege against Self-Incrimination promises to become the definitive history of the subject.