The Self-Incrimination Clause

. . . nor shall [any person] be compelled in any criminal case to be a witness against himself. . . .

—Paul G. Cassell

Introduction

In the continental European tradition, suspects were often forced to testify against themselves, sometimes through torture. In England, witnesses were questioned while under oath ex officio before the notorious courts of the High Commission and the Star Chamber.¹ The oath required the witness to answer all questions truthfully and was used to persecute political and religious dissenters. These proceedings had the odious effect of forcing devout individuals to choose between admitting crimes, to be followed by hanging, or denying crimes, to be followed by damnation. The privilege against self-incrimination in the Fifth Amendment reflects the Framers’ determination to avoid these abuses.

History Before 1787

The ius commune (customary European law) contained a rule against forced self-incrimination, and the earliest clear statement of the privilege in the legal life of England sprang from this continental source.² Defense attorneys also played an important role in developing a more adversarial system of justice. Through the eighteenth century, the advent of defense counsel and a reconstruction of the criminal trial as involving adversary criminal procedure laid the groundwork for a privilege against self-incrimination.³ At the start of the eighteenth century, as a development of English common law, the practice of examining the accused at trial ended in English and, by extension, colonial courts.⁴ Around the same time, English common-law developments meant that defendants were prohibited from providing testimony at trial on the ground that they were disqualified to testify as interested parties.⁵

These practices concerned only the defendant’s testimony at trial, but the accused remained an important source of evidence because he could be questioned before trial and the results of that questioning could be used at trial. The general practice in both England and the American colonies was that constables who made arrests would bring persons accused of felonies before justices of the peace for questioning.⁶ The results of such “preliminary examinations” were important sources of evidence. However, reflecting the understanding of a right against self-incrimination, the judicial officer conducting the questioning could not question a suspect under oath or use means of torture or threats of imprisonment.⁷

In America, codifying the privilege against self-incrimination began in Virginia. Section 8 of the 1776 Declaration of Rights provided that “in all capital or criminal prosecutions a man hath a right [not to] be compelled to give evidence against himself.”⁸ This provision became the model for other states, many of which adopted comparable declarations of rights essentially tracking the Virginia language.⁹

The Constitutional Convention and Ratification Debates

The Philadelphia Convention drafted a proposed Constitution without a bill of rights. Accordingly, the proposed Constitution made no reference to (among other things) a right against self-incrimination.

This omission was the subject of attack by Anti-Federalists. At the Virginia ratifying convention, Patrick Henry gave a fiery speech. He objected that, in the absence of a bill of rights, “Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany—of torturing, to extort a confession of the crime.”¹⁰

Adoption of the Fifth Amendment

The First Congress responded to such concerns. On June 8, 1789, Representative James Madison of Virginia proposed language that later became the Fifth Amendment. Madison’s draft provided that “[n]o person . . . shall be compelled to be a witness against himself . . . .”¹¹ The language differed only slightly from the Virginia provision, which barred “giv[ing] evidence” against oneself. Madison’s text suggested that the privilege applied in both criminal and civil cases.

Representative John Lawrence of New York addressed the proposal that “a person shall not be compelled to give evidence against himself.”¹² Lawrence used the language from the Virginia Declaration of Rights.¹³ Lawrence described the proposal as “a general declaration in some degree contrary to laws passed” and argued that it should “be confined to criminal cases.”¹⁴ He was likely referring to Section 15 of the Judiciary Act of 1789, which contained provisions requiring civil litigants to produce their books or papers containing evidence.¹⁵ Lawrence proposed an amendment restricting the clause to criminal cases. The House adopted the amendment without discussion and then adopted the clause as amended unanimously.¹⁶ The text provided: “nor shall [any person] be compelled in any criminal case to be a witness against himself.” The Senate did not change the clause, and this provision was ultimately adopted.

The Privilege in the Early Republic

After the Fifth Amendment was ratified, courts began to apply the Self-Incrimination Clause in judicial proceedings. In two foundational cases, Chief Justice John Marshall permitted third-party witnesses, who were not the defendants, to claim the privilege. In Marbury v. Madison (1803), Marshall ruled that a witness (Attorney General Levi Lincoln) was not “obliged to state any thing which would criminate himself.”¹⁷ In the 1807 treason trial of Aaron Burr, Marshall, while riding circuit, ruled that Burr’s secretary was required to answer a government question about the plot but on the ground that the answer to the narrowly formulated question could not incriminate the secretary.¹⁸

The Privilege and Production of Documents

The right against self-incrimination does not attach only to in-person testimony. For a time, the Court extended the privilege to the production of documents. Boyd v. United States (1886) held that the privilege protected private books and papers.¹⁹ This decision conceived of the right as a way to promote privacy of property. Somewhat relatedly, Hale v. Henkel (1906) rejected the claim that a corporation could assert the privilege and said that it must surrender its corporate records.²⁰

Fisher v. United States (1976) departed from Boyd and held that the Fifth Amendment does not protect against production of private papers unless official compulsion forced the defendant to create the documents.²¹ The Court explained that it could not “cut the Fifth Amendment completely loose from the moorings of its language.” Justice Byron White’s majority opinion would not make the privilege “serve as a general protector of privacy, a word not mentioned in its text and a concept directly addressed in the Fourth Amendment.”²² The Fifth Amendment, the Court held, protects against “compelled” testimony, “not [the disclosure of] private information.”²³

The Privilege and Immunity

Immunity is a promise from the government not to use the compelled information against the defendant. Evidence produced under a court immunity order is not incriminating, and therefore a witness cannot assert the privilege. The government may grant a witness transactional immunity or use immunity. Transactional immunity bars any prosecution for the conduct to which the testimony relates. Use immunity permits the government to prosecute the witness but only after proving that the prosecution has made no use of the compelled testimony or any evidence derived from it. Typically, the prosecution will exhaust all other avenues of investigation before applying for a use immunity order, and the supporting affidavit will describe in detail the evidence the prosecution has assembled before compelling testimony.

Brown v. Walker (1896) upheld a federal law that allowed a court to compel a witness’s testimony if the witness was granted transactional immunity.²⁴ The Supreme Court, however, has held that only use immunity is needed to prevent a witness from invoking the privilege.²⁵

The Privilege and Miranda

During the first half of the twentieth century, the Court decided many cases involving the “voluntariness” of confession based on the Due Process Clause, including Brown v. Mississippi (1936).²⁶ However, the Court did not consider the Fifth Amendment to have relevance to police questioning. This would change with Malloy v. Hogan (1964), which incorporated the privilege against self-incrimination against the states.²⁷

Two years later, in Miranda v. Arizona (1966), the Court departed significantly from historical understandings and applied the Self-Incrimination Clause expansively to regulate police questioning. By a vote of 5 to 4, Miranda held that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.”²⁸ Justice Byron White’s dissent contended that the majority decision had “no significant support in the history of the privilege or in the language of the Fifth Amendment.”²⁹ Chief Justice Earl Warren’s majority opinion resulted in a warning-and-waiver regime. Under this decision, police must provide the famous Miranda warnings in order to use a suspect’s confession at trial.

Reaction to Miranda was swift. In 1968, Congress “repealed” Miranda. The statute made police delivery of warnings to be only a factor in determining whether to admit a confession rather than a requirement as Miranda had held.³⁰ That law fell into desuetude as federal law enforcement agencies routinely delivered Miranda warnings to suspects. In Dickerson v. United States (2000), the Supreme Court declared the statute unconstitutional, although the majority appeared to concede that the Constitution itself did not require the Miranda rule.³¹ (Your author argued Dickerson as amicus curiae.)

The Court has created many exceptions to Miranda. New York v. Quarles (1984) allowed the police to depart from the Miranda regime in “public safety” situations.³² Oregon v. Elstad (1985) held that police were free to use the “fruits” of a confession that had been obtained in violation of the Miranda procedures.³³ Where police violated the Self-Incrimination Clause directly by obtaining a coerced confession, the government may not use that confession or any evidence that is the fruit of that confession. If, however, the original illegality is a mere violation of the Miranda rule, then the government may use any evidence that is the fruit of the violation. Under current doctrine, violating Miranda means violating only a prophylactic rule, not a right secured by the Constitution.³⁴

Open Questions

• In light of subsequent, narrowing interpretations of Miranda, the net effect of the rules on police effectiveness remains disputed.³⁵ Might the Court, which is more focused on the original meaning of the clause, overrule Miranda?
• Can police compel suspects to assist in unlocking cell phones? Compelling a suspect to use his fingerprint to unlock a cell phone might not be “testimonial” and thus outside Fifth Amendment protection. By contrast, a court order requiring a suspect to disclose a password might be viewed as requiring a suspect to say what is “in his or her mind” and thus is a violation of the Fifth Amendment.

1. Leonard W. Levy, Origins of the Fifth Amendment: The Right Against-Self Incrimination (1968); John Henry Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law (3d ed. 1940). ↩︎
2. R.H. Helmholz, Origins of the Privilege Against Self-Incrimination: The Role of the European Ius Commune, 65 N.Y.U. L. Rev. 962 (1990). ↩︎
3. John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994); Leonard W. Levy, Origins of the Fifth Amendment and Its Critics, 19 Cardozo L. Rev. 821 (1997). ↩︎
4. Off. of Legal Pol’y, U.S. Dep’t of Justice, Report to the Attorney General on the Law of Pretrial Interrogation (Feb. 12, 1986), reprinted in 22 Mich. J. L. Ref. 437, 455–57 (1989); E.M. Morgan, The Privilege Against Self-Incrimination, 34 Mich. L. Rev. 1, 9–11 (1949). ↩︎
5. 22 Mich. J. L. Ref., supra at 456. ↩︎
6. Id. at 457–59. ↩︎
7. Id. at 458–58. ↩︎
8. Virginia Bill of Rights of 1776, § 8. ↩︎
9. Mass. Const. of 1780, part I, art. XII; Penn. Const. of 1776, Decl. of Rts., art. IX; N.C. Const. of 1776, Decl. of Rts., art. VII; Levy, Origins, supra at 405–07. ↩︎
10. 3 Elliot’s 447–48. ↩︎
11. 1 Annals of Cong. 451–52 (1789). ↩︎
12. 1 Annals of Cong. 782 (1789). ↩︎
13. Levy, supra at 424. ↩︎
14. 1 Annals of Cong. 782 (1789). ↩︎
15. 1 Stat. 73, 82; Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 95 (1923). ↩︎
16. 1 Annals of Cong. 782 (1789). ↩︎
17. Marbury v. Madison, 5 U.S. 137, 144 (1803). ↩︎
18. Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905, 941–46 (2021). ↩︎
19. 116 U.S. 616 (1886). ↩︎
20. Brown v. Walker, 161 U.S. 591 (1896); Hale v. Henkel, 201 U.S. 43 (1906). ↩︎
21. Fisher v. United States, 425 U.S. 391 (1976). ↩︎
22. Id. at 401. ↩︎
23. Id. ↩︎
24. 161 U.S. 591 (1896). ↩︎
25. Kastigar v. U.S., 406 U.S. 441 (1972). ↩︎
26. 297 U.S. 278 (1936). ↩︎
27. Malloy v. Hogan, 378 U.S. 1 (1964). ↩︎
28. 384 U.S. 436, 467 (1966). ↩︎
29. Id. at 527 (White, J., dissenting). ↩︎
30. 18 U.S.C. § 3501. ↩︎
31. 530 U.S. 428 (2000). ↩︎
32. 467 U.S 649 (1984). ↩︎
33. 470 U.S. 298 (1985). ↩︎
34. Vega v. Tekoh, 597 U.S. 134 (2022). ↩︎
35. Paul G. Cassell & Richard Fowles, Still Handcuffing the Cops? A Review of Fifty Years of Empirical Evidence of Miranda’s Harmful Effects on Law Enforcement, 97 B.U. L. Rev. 685 (2017). ↩︎