In the Roman Catholic Church’s campaign against heresy on the European continent in the late Middle Ages, ecclesiastical courts used the oath ex officio, by which suspects were required to swear to answer truthfully all questions that might be posed, without knowing the accusers, the charges, or the evidence. Refusal to take the oath resulted in condemnation as guilty, and acquiescence posed great risks of self-incrimination or punishment for perjury. Because perjury courted eternal damnation even if temporally unpunished, the oath was a powerful incentive for self-incrimination.
At about the same time, ecclesiastical courts in England, exercising jurisdiction over many secular offenses as well as church matters, sometimes imposed the oath ex officio and, more menacingly, in the sixteenth and seventeenth centuries so did the Court of High Commission (focused on heresy but able to impose civil as well as spiritual penalties) and the Court of Star Chamber (a secular court focused on political as well as criminal offenses). These courts also acknowledged, however, an opposing principle, nemo tenetur prodere seipsum (or nemo tenetur seipsum accusare)—no man should be compelled to betray (or accuse) himself. This principle arose not so much as a right of the accused as a means of requiring a credible basis for charges beyond the suspect’s own words; it stood in opposition to the obligation to answer under the oath ex officio but was restricted in application and not a sure safeguard.
The courts of High Commission and Star Chamber were abolished in 1641 and the oath ex officio died out, but criminal defendants in common-law courts still faced aggressive pretrial questioning by magistrates and trial questioning by prosecutors and judges; at neither point were they under oath, but their words (or refusal to speak) could be used against them. Although the practice of trial questioning gradually died out, the absence of defense attorneys meant that the only defense available was to speak on one’s own behalf. An effective right to silence did not begin to emerge in England until the late eighteenth century, when trial procedures began to be revolutionized and a norm of excluding involuntary confessions (if only because they might be untrue) began to take hold.
Similar conditions prevailed in the American colonies, including the conflict between the ex officio and nemo tenetur principles. Heightened antipathy to British mechanisms of oppression, including use of the oath ex officio in prerogative courts, led all the newly independent states in the years after 1776 to embody in constitution, bill of rights, or common law some explicit or implicit recognition of a right not to incriminate oneself. When the Bill of Rights was added to the new federal constitution, there was no significant debate over inclusion of the Fifth Amendment provision that ‘‘No person . . . shall be compelled in any criminal case to be a witness against himself.’’ These state and federal provisions formalized rather than reformed best current procedure, however, and did not entail the privilege against self-incrimination as we know it. They precluded torture and some other coercive forms of interrogation, and incriminating interrogation under oath—but unlike witnesses, defendants were not under oath at trial. They remained subject to an expectation that the innocent could and would defend themselves, and official pretrial pressures to confess and use of the products thereof were not seen as a violation of rights. The federal constitutional guarantee, moreover, would not apply against the states—which conduct the vast majority of criminal trials—until 1964.
Although the accused had to defend themselves in court if they lacked counsel, they could not testify under oath in any American jurisdiction until 1864 (because they were not considered disinterested parties). By 1900, the federal government and every state but Georgia had passed laws allowing (but not requiring) defendants to testify, and most of the new statutes stipulated that no adverse inferences could be drawn from a decision not to do so. (A century later, the Court would affirm that those are constitutional rights as well.) Counsel was now much more readily available, and defendants who could afford them could therefore exercise a genuine right to silence at trial.
The privilege forbade compulsion to testify under oath, but the use of incriminating statements gained through pretrial interrogation was another matter. Courts determined the admissibility of such statements on the basis of their trustworthiness, an assessment resting in large part on their voluntariness. Because pretrial questioning gradually passed out of the hands of magistrates and became the responsibility of newly developing police departments, however, trial judges had only partisan accounts of interrogations and tended to give the benefit of the doubt to police— who had both the incentive and the opportunity to use coercive methods to obtain confessions.
Without reference to the Fifth Amendment, the Supreme Court held in Hopt v. Utah Territory that threats, inducements, or promises could render a confession involuntary in federal court; in 1897, it casually announced that the Fifth Amendment embodied the federal standard of admissibility but then ignored that approach for several decades. More significantly, the Court ruled in Boyd v. United States that the enforced production of private papers violated the Fifth Amendment and in Counselman v. Hitchcock that the privilege could be asserted not only at a criminal trial but in other forums where testimony could be compelled, because such testimony could later be introduced at trial. Counselman also held that incriminating testimony could be compelled only with a grant of complete immunity from prosecution for the offense in question (transactional immunity).
Early in the twentieth century, the Court held that the privilege is restricted to natural persons and cannot be asserted by corporations, labor unions, or other collective entities. It reiterated the view that (like the rest of the Bill of Rights) the Fifth Amendment privilege against self-incrimination did not apply to the states and added that the Fourteenth Amendment guarantee of due process (which does apply to the states) did not include the privilege. By mid-century it was clear that where it does apply, the privilege is not automatic and must be formally invoked. Defendants in criminal trials have an absolute right not to testify, but witnesses in any forum may assert the privilege only when their answers would present a realistic risk of incrimination, either directly or by providing a link in a chain of evidence or a lead to further evidence. Even if the requested information would be incriminating, it is not privileged if the individual does not face criminal liability, as when immunity has been granted or the statute of limitations has expired. The privilege may not be invoked to avoid any noncriminal consequences, however undesirable, but it is available even to those who maintain complete innocence, because they could be prosecuted on the basis of appearances. Consistently with the nemo tenetur principle, it protects individuals from being compelled to incriminate themselves, but not from the compulsion of evidence against them from any other source.
In the latter half of the twentieth century, the Court carved out various other exceptions to the testimonial privilege, first by elaborating the older idea that the privilege does not apply to records that a general regulatory statute requires individuals or organizations to keep. It then refused to expand the nemo tenetur principle by holding in Schmerber v. California and subsequent cases that the prohibition of compulsion to be a witness against oneself extends only to testimonial or communicative evidence and offers no protection against the compelled production of physical evidence such as blood samples, fingerprints, DNA samples, and even utterances for the purpose of voice recognition.
Drawing on the narrow and literal conception of the privilege in Schmerber, the Court undercut the Boyd case’s protection of private papers in Fisher v. United States and subsequent cases, holding that there is no protection against a subpoena for (or search and seizure of) voluntarily prepared private papers because no communicative act has been compelled. The contents of such papers thus enjoy no protection, but where the act of producing them would itself be incriminating, they cannot be subpoenaed without a grant of immunity for the act of production (but not for the contents). The Court also significantly modified the Counselman decision by holding in Kastigar v. United States that transactional immunity provides more protection than the Fifth Amendment requires and that immunity from the use of testimony and any evidence directly or indirectly derived therefrom—use and derivative use immunity—is all that is required for the compulsion of incriminating testimony. That formulation, the Court concluded, is congruent with the Fifth Amendment privilege as enforced by the exclusionary rule, under which compelled statements and evidence derived therefrom may not be introduced as evidence against the person whose rights were violated, but he or she may still be prosecuted.
The testimonial privilege came most prominently and controversially to public attention in the era of the 1950s, when events such as the spread of communism in Eastern Europe, the Korean War, and Soviet espionage concerning the atomic and hydrogen bombs brought to fever pitch a relentless investigation of communism in America that came to be known as McCarthyism. Persons suspected of disloyalty were investigated not only by grand juries but also very publicly by congressional committees such as the House Un-American Activities Committee (HUAC), the Senate Subcommittee on Internal Security, and the Senate Permanent Subcommittee on Investigations under Senator Joseph R. McCarthy (R–WI), who in 1954 was censured by the Senate for his conduct. Witnesses could claim the privilege because of the threat of prosecution under the Smith Act, but in Ullmann v. United States the Court rejected the argument that it could be used to shield them from ‘‘loss of job, expulsion from labor unions, state registration and investigation statutes, [loss of ] passport eligibility, and general public opprobrium,’’ even though these disabilities might be much more severe than the noncriminal consequences previously denied protection. In what is now generally regarded as an atmosphere of paranoid fear often leading to investigations serving little purpose beyond probing the political beliefs and unfairly sullying the reputations of their targets, witnesses granted immunity faced the choices of refusing to answer and being punished for contempt, lying, and being punished for perjury or answering truthfully and being subjected to the harsh consequences identified by William Ullmann. The very act of claiming the privilege, even if immunity was not granted and testimony was not required, branded one as probably disloyal. Many persons lost their jobs as a result, and many public and private careers were unjustifiably ruined.
The threat of punishment for contempt is not the only form of compulsion, and as the anticommunist crusade died down, the Court ruled that individuals could not be fired from public employment, prohibited from entering into business contracts with the government, stripped of political party office, or barred from the practice of law simply for asserting the privilege (but could suffer such consequences if they refused to testify under a grant of immunity). In Albertson v. Subversive Activities Control Board it struck down a statute requiring members of communist organizations to register with the government and supply information about their activities, distinguishing it from general regulatory reporting requirements not aimed at criminal suspects. In the same spirit, it also upheld the assertion of the privilege with respect to laws requiring registration of gamblers and owners of illegal firearms. The Court opted to protect other values, however, by upholding a common state requirement that persons involved in traffic accidents with property damage stop and provide other drivers with their names and addresses (California v. Byers), and a court order to a mother suspected of serious child abuse to produce the child (Baltimore City Department of Social Services v. Bouknight). It also made clear that the privilege protects only those confessions compelled by governmental action and not those resulting from such other sources of compulsion as mental illness.
In 1931, the Report on Lawlessness in Law Enforcement by the National Commission on Law Observance and Enforcement (the Wickersham Commission) documented widespread use of brutal third-degree tactics of police interrogation, and a particularly gruesome, racially charged example soon came to the Court in Brown v. Mississippi. Three young black men had been convicted of murder and sentenced to death on the basis of confessions elicited by savage beatings; there was no other evidence against them, and all had alibis. Overturning a result upheld by the state supreme court, the Court held that although the Fifth Amendment privilege pertained to testimony under oath and did not apply to the states in any event, use of pretrial confessions gained by force violated the Fourteenth Amendment guarantee of due process of law and in this case had perpetrated ‘‘a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void.’’
State courts had typically admitted or excluded confessions on the basis of their reliability, considering their voluntariness in making that assessment, but over the next three decades (and particularly in the liberalizing era of Chief Justice Earl Warren), the Court elaborated and enforced a conception of due process in which fair treatment of suspects was the touchstone and voluntariness per se was the criterion of admissibility for confessions. It held that psychological as well as physical coercion could violate due process and gradually abandoned the approach in which the determination of whether various forms and degrees of coercion were excessive depended on the powers of resistance of the suspect in question. The scope of permissible pressure was progressively reduced to rule out techniques of intimidation, protracted and persistent questioning, deprivation of bodily needs, and similar tactics of interrogation, with the ultimate test being whether or not a suspect had confessed of his or her own free will.
The voluntariness criterion in state cases was now so close to the federal standard of not being compelled to incriminate oneself that the Court relied on the state confession cases in Malloy v. Hogan, where it incorporated the self-incrimination clause of the Fifth Amendment into the due process clause of the Fourteenth Amendment and applied it (and its associated doctrines) to the states. In a companion case applicable only within the United States, it held that persons may assert the privilege in one jurisdiction out of fear of prosecution in another, and that a grant of immunity in one jurisdiction applies to other jurisdictions as well.
A major problem remained, however, which was the difficulty trial judges had considering the admissibility of confessions encountered in determining the true nature of interrogations that had occurred in the privacy of police stations. The Court thus took another major step in Miranda v. Arizona by holding that the privilege against self-incrimination applies to coerced confessions as well as compelled testimony and devising the Miranda warnings to protect the privilege for persons undergoing custodial interrogation.
At the time of Boyd in the late nineteenth century, the rationale for the privilege seemed to be the protection of privacy, but subsequent decisions such as Schmerber and Fisher and those on collective entities and required records have undermined that conception, and there is no consensus on an alternative beyond a general desire to prohibit abusive governmental tactics. Debate over the proper scope of the privilege thus continues, with serious arguments for both expansion (such as restoring protection for private papers) and contraction (such as permitting the use of physical evidence derived from compelled statements). Controversy is compounded by uncertainty about the policy impact of constitutional doctrines. There is, for example, serious disagreement as to whether the Miranda initiative has either significantly inhibited police or substantially benefited suspects (most of whom waive their rights and talk to police). Furthermore, new issues concerning the proper scope of the privilege in the context of the war on terror are beginning to emerge. In that effort, the purpose of interrogation (of citizens and aliens, at home and abroad) may be to gather intelligence rather than evidence for prosecution, and the Court has ruled that it is not the use of coercive tactics of interrogation that violates the privilege, but only the use of the products as evidence in a criminal trial. With respect to both enduring and emerging issues, the scope and applicability of the privilege against self-incrimination will be the subject of continuing controversy.
JOHN B. TAYLOR
References and Further Reading
Cases and Statutes Cited