The Privilege Against Self-Incrimination: Its Origins and DevelopmentChallenging the accounts of John Henry Wigmore and Leonard W. Levy, this history of the privilege against self-incrimination demonstrates that what has sometimes been taken to be an unchanging tenet of our legal system has actually encompassed many different legal consequences in a history that reaches back to the Middle Ages. Each chapter of this definitive study uncovers what the privilege meant in practice. The authors trace the privilege from its origins in the medieval period to its first appearance in English common law, and from its translation to the American colonies to its development into an effective protection for criminal defendants in the nineteenth century. The authors show that the modern privilege—the right to remain silent—is far from being a basic civil liberty. Rather, it has evolved through halting and controversial steps. The book also questions how well an expansive notion of the privilege accords with commonly accepted principles of morality. This book constitutes a major revision of our understanding of an important aspect of both criminal and constitutional law. |
Contents
The Middle Ages | 17 |
The Sixteenth to the Eighteenth Centuries | 82 |
The Colonial | 109 |
Its NineteenthCentury Origins | 145 |
SEVEN A Peculiar Privilege in Historical Perspective | 181 |
Notes | 205 |
Table of Statutes 295 | 3 |
Common terms and phrases
accused speaks American argued argument Beattie canon law chapter church cited civil colonial common law courts compelled compulsion confession rule constitutional conviction crime criminal defendants criminal justice criminal procedure criminal trial debate defendant's defense counsel disqualification Eben Moglen ecclesiastical courts eighteenth century England ex officio oath exclusionary felony Fifth Amendment Garbett habeas corpus High Commission incriminating questions interrogation ius commune John John Lilburne judicial jurisdiction jury Langbein Law Review lawyers Levy Lilburne Magna Carta Maunsell & Ladd maxim Nemo tenetur ment modern privilege Nemo tenetur maxim Nemo tenetur prodere nineteenth century offenses Old Bailey Parl parties perjury person Pleas practice principle prisoner privilege against self-incrimination proceedings prohibition prosecution protection public fame punishment reason remain silent right to remain right to silence Star Chamber statute supra note suspects sworn tenetur prodere seipsum testify testimony tion torture treatise Wigmore witness privilege York