Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, the constitutional provisions of the late eighteenth century protecting against compulsory self-incrimination were not final acknowledgments of a long-accepted “fundamental right.” They were instead reflections of the contentious prerevolutionary constitutional debate, in which North American advocates made sweeping and often antiquarian legal claims protecting or expanding their power to resist Imperial control. The privilege against giving compelled self-incriminatory testimony was one of several common law doctrines to which the Americans gave far more rhetorical than practical respect during this period because it was ancillary to one of their central concerns the constitutional function of the jury trial in limiting governmental power. The enactment of constitutions containing sweeping endorsements of the privilege seems to have had little or no immediate effect on contrary practice in the new states. By examining the activities of defense counsel, however, we can begin to trace the gradual adjustment of the criminal procedure system in the second and third decades of the nineteenth century.