Fifth Amendment Self-Incrimination and Miranda Rights Explained

Historical Roots of the Right Against Self-Incrimination

The idea of remaining silent when faced with accusation has deep historical, religious, and legal roots. Moses' teachings, as transformed into written form by ancient Talmudic law, contained a complete ban on self-incrimination. This prohibition could not be changed because it was viewed as contravening the natural instinct for survival. The ancient common law rule similarly held that confessions must be voluntary. When the right to remain silent was incorporated into the Fifth Amendment of the U.S. Constitution, it carried with it a complicated and controversial history. The Supreme Court has applied three constitutional provisions to develop rules governing police interrogation and the confession process: the Sixth Amendment right to counsel, the Fourteenth Amendment due process clause, and the Fifth Amendment self-incrimination clause. Each of these provisions has led police to handle interrogation and confessions in varying ways (Samaha, 2012).

Although the self-incrimination concept is rooted in Talmudic law and the thinking of early Christians, its current form was inspired by the events of the English Civil War in the mid-seventeenth century. Ecclesiastical courts such as the Star Chamber and the High Commission made use of an ex-officio oath to suppress religious dissent common among Catholics and Puritans. A suspect was required to answer all questions honestly, even though the suspect never knew what questions would be asked at trial. Authorities at the time required no basis to believe the suspect had committed a crime (Confessions — the Self-Incrimination Approach historical background, 2016).

To address these abuses, the bills of rights adopted by the states in the 1770s and 1780s included a privilege barring self-incrimination. For instance, Section 8 of the Virginia Declaration of Rights stated that in all criminal and capital prosecutions, one cannot be forced to provide evidence against oneself. Some critics argue that such provisions were intended only to protect existing procedures against British retrenchment, rather than to achieve broader reform. As a result, forced incrimination before peace justices was maintained as a norm (Confessions — the Self-Incrimination Approach historical background, 2016).

When the 1787 Constitution was presented to the states for ratification, more than half of them recommended amendments. Four conventions — North Carolina, Rhode Island, Virginia, and New York — specifically called for inclusion of language similar to Section 8 of the Virginia Declaration of Rights. James Madison, who had initially opposed the Bill of Rights, ultimately brought the bill to the House of Representatives. His proposal contained a clause stating that no person shall be compelled to testify against themselves. No opposition was raised, and the self-incrimination provision passed the House unanimously. The Senate passed it without changes, and the states subsequently ratified the provision along with the rest of the Bill of Rights (Confessions — the Self-Incrimination Approach historical background, 2016).

References

Confessions — the Self-Incrimination Approach historical background. (2016). Retrieved November 3, 2016, from http://law.jrank.org/pages/709/Confessions-self-incrimination-approach-historical-background.html

Mims, M. C. (2010). Trap for the unwary: The Sixth Amendment right to counsel after Montejo v. Louisiana. La. L. Rev., 71, 345.

Samaha, J. (2012). Criminal procedure (8th ed.). Belmont, CA: Cengage Learning.