A Peculiar Privilege in Historical Perspective: The Right to Remain Silent
Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person “shall be compelled in any criminal case to be a witness against himself.” The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation – a view that countless repetitions of the Miranda warnings have impressed upon the public – asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward her decision not to speak. In the Supreme Court’s words, “[T]he privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ ” He must have a ” ‘free choice to admit, to deny, or to refuse to answer.’ ” The Fifth Amendment dictates an “accusatorial system,” one requiring “the government in its contest with the individual to shoulder the entire load. ” On this view, the concept of waiving the privilege seems unproblematic; one might waive a right to remain silent for many plausible reasons.
This article argues that as embodied in the United States Constitution, the privilege against self-incrimination was not intended to afford defendants a right to remain silent or to refuse to respond to incriminating questions. Its purpose was to outlaw torture and other improper methods of interrogation .