TAKING THE FIFTH: RECONSIDERING THE ORIGINS OF THE CONSTITUTIONAL PRIVILEGE AGAINST SELF- INCRIMINATION
Eben Moglen*
INTRODUCTION
Modern criminal procedure in the common law jurisdictions has few distinguishing features as significant as the defendant's strong privilege against becoming a testimonial resource in a criminal investi- gation or trial. This is particularly true in the United States, where the interpretation of the Fifth Amendment's familiar wording 1 guarantees that objects of police investigation will be warned prophylactically against testimonial cooperation with the police and protects against adverse commentary on failure to testify at trial. 2 Perhaps because of its contemporary significance, historical scholarship has tended to lo- cate the origin of the privilege deep in the libertarian tradition of the common law. Our greatest scholar in the law of evidence first set forth these interpretive assumptions, finding the origin of a right against self-incriminatory questioning in the legacy of resistance to the prerog- ative justice of the Stuart monarchy during the second quarter of the seventeenth century. 3 Following this approach, Leonard Levy traces a line of descent for this "right" from Puritan and Leveller resistance movements in the 1630s and 1640s through the Glorious Revolution, and on to the adoption of the American Bills of Rights in state and federal constitutions of the 1770s and 1780s. 4
The purpose of this essay is to cast doubt on two basic elements of
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Associate Professor of Law, Columbia. B.A. 1980, Swarthmore; M.Phil. 1985, J.D. 1985, Ph.D. (History) 1993, Yale. Due to the unavailability of certain sources, the sources that the Michigan Law Review has not consulted are followed by a †. -- Ed. I would like to thank Barbara Black, Peter Hoffer, John Langbein, William E. Nelson, and the members of the NYU Legal History Colloquium for their contributions to the evolution of this study.
See John H. Wigmore, "Nemo Tenetur Seipsum Prodere", 5 HARV. L, REV.71 ( 1891 ); John H. Wigmore , "The Privilege Against Self-Crimination; Its History", 15 HARV. L. REV. 610 ( 1902 ). Wigmore's early work on the privilege was revised, without major substantive alteration, through the successive editions of his treatise. See8 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COM- MON LAW § 2250, at 267 n.1 ( John T. McNaughton rev. ed., 1961 ).
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