The Historical Origins of the Privilege Against Self-Incrimination at Common Law

This essay explains that the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel.

Part I of this essay discusses the several attributes of early modem criminal procedure that combined, until the end of the eighteenth century, to prevent the development of the common law privilege. Part II explains how prior scholarship went astray in locating the common law privilege against self-incrimination in the wrong events and in the wrong century.