The Minimalist Privilege
The Fifth Amendment’s self-incrimination privilege is an unsolved problem. It casts a wide shadow over a variety of essential government activities, concerning criminal trials, custodial interrogation, legislative hearings, grand jury investigations, administrative investigations, and government employment, among other things. Judicial review that places substantial limits on essential government activity needs careful justification in order to be considered legitimate—careful justification that is lacking in the self-incrimination context. This lack of justification makes the self-incrimination privilege the problem child of the Bill of Rights.
The difficulty in justifying the right is compounded by the Supreme Court’s interpretation of the privilege, most of which finds support in neither history nor the constitutional text. Since legislative history of the Fifth Amendment privilege adds little to our understanding, the historical foundations of the Fifth Amendment privilege must come from its common law origins. The privilege was first asserted by religious dissidents in the English ecclesiastical and prerogative courts of the Star Chamber and High Commission. Such efforts were unsuccessful until Parliament abolished the prerogative courts and oath ex officio in the 1640s. The privilege’s ascendancy did little to change common law criminal procedure. English criminal procedure gave defendants powerful incentives to speak at trial because of the fact that silence could be used against the accused. Defendants had the same incentive to speak under American criminal procedure once the Fifth Amendment was adopted. The intent behind the privilege was not to create a right to silence but rather to prohibit compelled incrimination under oath, torture, and possibly other forms of coercion like threats of punishment or promises of leniency. Compelled incrimination from the accused was acceptable, so long as it was not under oath. The Fifth Amendment, when viewed in the context of Anglo-American criminal procedure at that time, was no more than a guarantee against the state’s “reimposing ex officio procedures or judicial torture.” Modern applications of the privilege, however, go far beyond its history. The privilege’s limited history cannot explain or justify its modern form.
