Academic journal article
By Inbau, Fred E.
Journal of Criminal Law and Criminology , Vol. 89, No. 4
In the course of criminal investigations and criminal prosecutions it frequently becomes important, or at least desirable, to require an accused person to perform some act or to submit to what might be termed an invasion of his bodily security. The usual situation arises from attempts to effect an identification of the accused, or to ascertain from an examination of his body certain facts tending to establish his guilt or innocence as a criminal offender. In such instances, to what extent does the constitutional privilege against self-incrimination afford protection to accused persons?
A discussion concerning the scope and limitations of the privilege against self-incrimination necessarily involves a consideration of its history and of the policy which justifies its existence. Of this, however, only a brief treatment is necessary for our present purpose. The principal objective of this paper is to present a review of pertinent legal decisions, analyzed and discussed under various classifications based upon factual situations. These classifications, however, are offered merely for the convenience and interest of the reader and not as any indication that each group of cases warrants the application of a different legal principle in interpreting the constitutional privilege.
I. HISTORY AND POLICY OF THE PRIVILEGE
The early English history of our present day privilege against self-incrimination is indeed a strange one. It developed about the middle of the seventeenth century as a restriction upon the cruel religious persecutions for heresy in the ecclesiastical courts, and primarily for the purpose of stripping such courts of their increasing authority, so that they might be kept within their proper status--beneath the dignity and authority of the common law courts.(1) Unlimited inquisitorial powers, permitting the administration of the oath "ex officio" and the compulsory examination of persons accused of heresy and of other offenses within the jurisdiction of the church courts, seemed to endanger the superior authority of the courts of common law.(2) In addition to this, of course, there existed a general disapproval of the practice, not so much because an accused was forced to testify against himself concerning the particular charge against him, but principally for the reason that such a practice permitted a general inquiry into a person's behavior and conduct, however unrelated they may be to the charge in question.
Not long after the abolition from the ecclesiastical courts of the oath "ex officio" and its attendant compulsory examinations, attention was focused upon the justification for even the common law courts to exercise such widespread authority. The result was a general reaction to the effect that no person should be bound to incriminate himself on any charge in any court. Common law courts began to concede this claim, first in criminal trials and later in civil proceedings. It soon became settled into the bed rock of English common law. By the latter part of the seventeenth century the privilege was so well established that apparently Parliament considered it unnecessary to include it in the Bill of Rights.(3)
On first impression it seems rather queer that this movement, started originally against a method of procedure in ecclesiastical courts, should produce in its ultimate effect a similar rule against testimony in common law courts. In explaining this phenomenon Wigmore calls attention to the comments of Bentham to the effect that this was only a nature and inevitable development, suggested, of course, by the procedural change in the ecclesiastical courts, to safeguard against existing and potential common law abuses, which, after all, were not substantially different from those resulting from the exercise of arbitrary power in probing into a man's conscience on the subject of religion.
It should be understood that the privilege against self-incrimination and the rule excluding untrustworthy confessions are separate and distinct, as to origin, development, and principle. …