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Turmoil surrounding the self-incrimination clause: why the Constitution does not forbid your silence from speaking volumes.

Madison was the first to phrase the privilege against self-incrimination this way. (157) As the House of Representatives debated each of Madison's proposed amendments in turn, no debate took place concerning the self-incrimination clause. (158) Only one speaker, John Laurance--a Federalist lawyer and politician from New York (159)--moved to amend the self-incrimination clause to add "in any criminal case." (160) The Armais of Congress report:

Mr. Lawrence said this clause contained a general declaration, in some degree contrary to laws passed. He alluded to that part where a person shall not be compelled to give evidence against himself. He thought it ought to be confined to criminal cases, and moved an amendment for that purpose; which amendment being adopted, the clause as amended was unanimously agreed to by the committee.... (161)

Thus, the House adopted Laurance's amendment--apparently without discussion, not even by Madison. (162) The House then sent the amendments to the Senate, with the self-incrimination clause now reading: "No person shall ... be compelled in any criminal case, to be a witness against himself. (163) Although the amendments underwent further change in the Senate, the self-incrimination clause remained untouched. (164)

Subsequently, a joint resolution of Congress submitted a list of twelve constitutional amendments to the state legislatures for ratification. (165) By December 15, 1791, ten of the twelve amendments were ratified by the requisite number of states and became the first ten amendments to the U.S. Constitution--the Bill of Rights. (166) The Self-Incrimination Clause was embodied in the Fifth Amendment. (167) The English common law privilege against self-incrimination had transformed into a U.S. constitutional right, which guaranteed that "No person shall ... be compelled in any criminal case to be a witness against himself." (168)

Criminal Procedure in the Newly-Established United States

"[T]here is no indication ... that criminal procedure in America made an abrupt about face when [the privilege] was ratified as a fundamental right in the Fifth Amendment." (169)

Justices of the peace continued to conduct pre-trial examinations of suspects prior to trial. (170) Furthermore, despite their testimonial disqualification, virtually all criminal defendants spoke at both the pre-trial and trial stages of criminal proceedings, and juries naturally drew adverse inferences when defendants refused to speak. (171) However, defendants who refused to speak "suffered no more severe sanction than the drawing of an adverse inference." (172) As such, historically there was no indication these practices violated the Fifth Amendment. (173)

Beginning in 1864, Maine abolished the testimonial disqualification of criminal defendants, and other states gradually followed. (174) The rule was completely abolished in 1962 when Georgia became the final state to declare that criminal defendants were competent enough to testify under oath. (175) It was only after these abolitions that the concern arose regarding the propriety of prosecutors' adverse comments at trial on criminal defendants' refusal to testify under oath. (176)

Although several statutes have since prohibited such adverse comments, (177) there was widespread disagreement on the subject. (178) As late as 1953, the Uniform Rules of Evidence provided that "if an accused in a criminal action does not testify, counsel may comment upon accused's failure to testify, and the trier of fact may draw all reasonable inferences therefrom." (179) Notwithstanding the merits of disallowing adverse comments as a legislative policy, the Fifth Amendment's text and history fail to support a constitutional prohibition on such adverse comments. (180) Nor can it reasonably be stated that enacting statutes banning adverse comments "somehow created a 'revised' understanding of the Fifth Amendment." (181)

III. THE CURRENT SCOPE OF THE PRIVILEGE AGAINST SELF INCRIMINATION

Since the adoption of the Bill of Rights, the Supreme Court has expanded the scope of the Self-Incrimination Clause beyond the literal meaning of its text. (182) Today, individuals can invoke the privilege in any proceeding in which testimony is legally required (183) if they reasonably believe their responses could be used against them in a criminal proceeding, or lead to evidence that may so be used. (184) Accordingly, individuals can invoke the privilege in federal and state civil court proceedings, (185) in criminal prosecutions, (186) and in proceedings before a grand jury, (187) legislative body, (188) or administrative agency. (189)

Although courts may compel a person's testimony via a subpoena and punish noncompliance with contempt, (190) an individual who properly exercises the privilege may not be held in contempt for refusing to testify. (191) Validly asserting the privilege also precludes other official sanctions, such as the loss of public employment, (192) of a public license, (193) or of the right to do business with the state. (194) Furthermore, the privilege extends to circumstances in which there is no legal compulsion to speak, such as during police interrogations. (195) To invoke the privilege and receive these protections, a person must satisfy six general requirements.

First, individuals can assert the privilege only if their responses will incriminate them in a criminal proceeding. (196) The privilege does not apply for responses that will subject the person to non-criminal liability, (197) harm to reputation, or infamy and disgrace. (198) Second, individuals can assert the privilege only when they are compelled to provide testimonial evidence. (199) Written, oral, and non-verbal communication is testimonial if its compulsion requires the person to reveal, directly or indirectly, the person's knowledge, consciousness, or "contents of his mind" about a particular fact or belief. (200) In other words, communication is testimonial if its compulsion places an individual into the "cruel trilemma" of having to choose between contempt, perjury, and self-incrimination. (201)

The testimonial communication doctrine extends to the compulsion of an individual's physical actions if those actions will disclose the contents of the individual's mind, such as when producing subpoenaed documents will constitute the individual's tacit admission to the existence, authenticity, or possession of those documents. (202) Conversely, the privilege does not apply to the compulsion of non-testimonial physical acts, such as requiring a person in custody to stand or walk in a police lineup, speak prescribed words, model particular clothing, or give samples of handwriting, fingerprints, or blood. (203) The privilege also does not apply when "incriminating evidence may be the byproduct of obedience to a regulatory requirement," (204) such as requiring an individual to file an income tax return, (205) maintain required records, (206) or report an accident. (207)

Third, the privilege is not self-executing. Individuals who want the privilege's protections must expressly claim it at the time they rely on it. (208) Otherwise, their responses are not considered to have been "compelled." (209) Furthermore, courts have the power to determine whether a person's fear of an incriminating response is in fact reasonable, and thus whether the person's assertion of the privilege is justified. (210) The Supreme Court has articulated two exceptions to the express invocation requirement--the privilege automatically applies to a criminal defendant at trial; additionally, it applies to suspects who make statements during custodial police interrogation in violation of Miranda as in those circumstances "governmental coercion makes [the] forfeiture of the privilege involuntary." (211)

Fourth, the privilege is personal. (212) An individual cannot claim the privilege on behalf of another (213) or on behalf of an organization such as a corporation. (214) Fifth, individuals cannot invoke the privilege if they have been granted immunity from prosecution. (215) The Court has held that where the government grants a person immunity from criminal prosecution, the person can be compelled to testify and be punished for contempt if he or she refuses. (216) Under a grant of "use and derivative use" immunity, the government may not use an individual's compelled testimony or any information derived from that testimony in prosecuting the individual, (217) but may prosecute the individual using evidence wholly independent of the immunized testimony. (218)

Finally, and most importantly, the privilege applies only against governmental compulsion of incriminating responses. (219) "By definition, a necessary element of compulsory self-incrimination is some kind of compulsion." (220) Thus, a person's voluntary statements absent governmental coercion are admissible against the person in a criminal proceeding. (221) Though the modern-day paradigm compelling a person's testimony is a court subpoena, (222) a person may also be compelled if "considering the totality of the circumstances, the free will of the witness was overborne." (223) For example, in Miranda v. Arizona, the Court held that compulsion is presumed in all custodial interrogations conducted in violation of the Miranda rules. (224) However, as Griffin demonstrates, the Court's interpretation of governmental compulsion has departed significantly from the traditional definition of compulsion under the Self-Incrimination Clause. (225)

IV. DEVIATION FROM THE COMPULSION ANALYSIS CAUSES TURMOIL IN CONSTITUTIONAL INTERPRETATION

In Michigan v. Tucker, the Supreme Court recognized the importance of considering the privilege's history in determining its scope:

The importance of a right does not, by itself, determine its scope, and therefore we must continue to hark back to the historical origins of the privilege, particularly the evils at which it was to strike. The privilege against compulsory self-incrimination was developed by painful opposition to a course of ecclesiastical inquisitions and Star Chamber proceedings occurring several centuries ago. Certainly anyone who reads accounts of those investigations, which placed a premium on compelling subjects of the investigation to admit guilt from their own lips, cannot help but be sensitive to the Framers' desire to protect citizens against such compulsion. As this Court has noted, the privilege against self-incrimination was aimed at a far-reaching evil--a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. (226)

Although the Supreme Court has acknowledged repeatedly that the privilege's interpretation must be "in accordance with the teaching of the history of the privilege," (227) the Court's failure to abide by its own admonition has caused turmoil in self-incrimination doctrine in recent years. (228)

A. The Supreme Court's Inconsistent Policy Rationales

As the Court has broadened the privilege's scope by applying its claimed policy objectives to novel situations over the years, it has failed to articulate with any consistency what those policy objectives exactly are. (229) For example, the Court persistently declared that the privilege was designed to protect the innocent and to further the search for truth. (230) However, it later rejected those principles as inapplicable (231) and asserted instead that the privilege's purpose is to preserve personal privacy and the adversarial system of criminal justice. (232)

Moreover, on one hand, the Court has declared that the Self-Incrimination Clause "is not to be interpreted literally." (233) On the other hand, it has stated that courts construing the Clause "cannot cut the Fifth Amendment completely loose from the moorings of its language." (234) Finally, although the Court has explicitly engaged in balancing tests between an individual's right to assert the privilege and competing social interests, (235) it has also asserted that such balancing tests are impermissible when interpreting the privilege "in its most pristine form." (236)

B. Trading the Compulsion Analysis for the "Penalty" Theory

As the privilege's history establishes, the resolution of issues arising under the Self-Incrimination Clause requires a compulsion analysis. (237) This rule is reinforced by the controlling language in the Fifth Amendment, which confirms that the Clause prohibits compelling individuals to incriminate themselves. In addition, the Supreme Court itself has acknowledged that "the circumstances surrounding the adoption of the Fifth Amendment ... give[] no indication that the Framers had any sense of a privilege more comprehensive than common law practice then revealed." (239) As such, the proper inquiry regarding prosecutorial comments on criminal defendants' trial silence must be whether such comments compel defendants to waive the privilege and testify.

In Griffin, the majority circumvented this analysis and held instead under a new "penalty" rationale (240) that the Fifth Amendment prohibited such prosecutorial comments. (241) Rather than analyze whether the prosecutor's comment on Griffin's refusal to testify exerted a compelling pressure on Griffin to waive his privilege, (242) the majority ruled that the prosecutor's comment was unconstitutional on the grounds that it imposed a penalty upon Griffin's exercise of the privilege and thus made Griffin's assertion of the privilege costly. (243) Justices Stewart and White, dissenting, criticized the majority's failure to apply the compulsion analysis, reminded the majority that compulsion must be the focus of the inquiry, and argued that if any compulsion existed in Griffin's trial, "it [was] of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee." (244) The Justices stressed that applying the majority's reasoning "stretche[d] the concept of compulsion beyond all reasonable bounds." (245) Concurring, Justice Harlan also added: "Although compelled to concur in this decision, I am free to express the hope that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history." (246)

The Court then extended Griffin's penalty theory in Carter v. Kentucky, and held that even where there are no adverse comments by the prosecutor, judges must comply with criminal defendants' demands to instruct juries to disregard their refusal to testify and not to draw any adverse inferences from it. (247) The Court opined that a penalty upon the privilege's exercise "may be just as severe when there is no adverse comment" because "the members of a jury, unless instructed otherwise, may well draw adverse inferences from a defendant's silence." (248) Concurring, Justice Powell reminded the Court that even though the Self-Incrimination Clause "enables a defendant in a criminal trial to elect to make no contribution to the factfinding process ... [n]othing in the Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances." (249) Additionally, a dissenting Justice Rehnquist admonished the majority for carrying its vague "concept of burdens and penalties" from "the Griffin case, to the present case and where it will stop no one can know." (250)

Following Griffin and Carter, the Court appeared to affix the "penalty" label indiscriminately to any consequence for asserting the privilege it wished to strike down. (251) The Court's opinions made no indication that these "penalties" exerted any compelling pressures on individuals to waive their privilege; rather, the Court proscribed the penalties on the apparently subjective ground that they were unfair. (252) Moreover, the Court failed to articulate a coherent standard as to what constituted an unconstitutional "penalty" upon the exercise of the privilege. (253) Consequently, courts throughout the United States lacked any solid framework for determining which penalties upon the privilege were acceptable and which were invalid. (254)

To confound this confusion, the Court sporadically returned to the compulsion analysis in cases such as Lakeside v. Oregon. (255) There, the Court declared that even over a criminal defendant's objections, a court may instruct a jury not to draw any adverse inferences from the defendant's failure to testify because such instructions did not compel the defendant to waive the privilege and testify. (256) Moreover, in Baxter v. Palmigiano, the Court rejected the argument that adverse inferences are an unconstitutional penalty upon a non-criminal defendant's exercise of the privilege. (257) Remarkably, the Court in Baxter acknowledged the significance of silence as an evidentiary matter, declaring: "Silence is often evidence of the most persuasive character.... Failure to contest an assertion is considered evidence of acquiescence if it would have been natural under the circumstances to object to the assertion in question." (258)

Furthermore, the Court upheld a number of government-imposed adverse consequences on individuals' exercise of the privilege. (259) In one such case, McGautha v. California, the Court opined:

The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election [between waiving the privilege, or asserting the privilege and incurring a negative consequence] impairs to an appreciable extent any of the policies behind the rights involved. (260)

But for the Court's failure to articulate consistently the exact policy objectives underlying the privilege, its approach in McGautha would have provided a comprehensible framework for courts to follow. (261) Although the Court continued to apply the "penalty" theory, it also declared in subsequent cases that the Constitution does not forbid "every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights." (262)

One such government-imposed choice appears in the form of Federal Rule of Evidence 609, which allows the government to impeach a criminal defendant's trial testimony using evidence of a prior criminal conviction. (263) Under Griffin, Rule (609) imposes a "penalty" upon a defendant's exercise of the constitutional right to testify at trial, which the Court has held is "a necessary corollary to the Fifth Amendment's guarantee against compelled testimony," (264) and makes asserting that constitutional right costly. Despite Griffin, the Court has upheld Rule (609) as constitutional. (265) As such, in spite of its reliance on the "penalty" doctrine, the Court has made apparent that criminal defendants are not "constitutionally entitled to be completely free of any penalty or burden" imposed upon their exercise of the Fifth Amendment. (266)

Accordingly, the penalty doctrine overstates the protection afforded by the Fifth Amendment. (267) The proper analysis regarding adverse prosecutorial comments on a defendant's refusal to testify at trial is whether such comments compel a defendant to waive the privilege and testify--not whether such comments impose a penalty upon the defendant's exercise of the right not to testify. "Our hardy forebears, who thought of compulsion in terms of the rack and oaths forced by the power of law, would not have viewed the drawing of a commonsense inference" as pressure tantamount to compulsion. (268) Similarly, it is doubtful by today's standards that the threat of an adverse comment exerts a compelling pressure on defendants to testify. (269) Rather, Griffin's deviation from the compulsion analysis and the Court's failure to apply the penalty doctrine consistently in subsequent cases has created turmoil in the interpretation of the Self-Incrimination Clause. This issue is particularly troublesome for lower courts, which look to the Supreme Court for guidance.

C. Instability in the Lower Courts Regarding Pre-Arrest Silence

In addition to upending self-incrimination doctrine, (270) Griffin has caused a split in the federal and state courts regarding whether Griffin's holding extends to prosecutorial comments on a defendant's pre-arrest silence during non-custodial encounters with police officers. (271) To be sure, those federal circuits that have prohibited such comments rely on Griffin in doing so. (272) In 2013, the Supreme Court granted certiorari in Salinas v. Texas to resolve the circuit split on the use of pre-arrest silence. (273)

Salinas involved the murder of two brothers who were shot to death at their home in Houston, Texas. (274) Although there were no witnesses, police recovered shotgun shell casings at the scene. (275) The investigation led officers to the home of Genovevo Salinas, who voluntarily agreed to hand over his shotgun for ballistics testing, and accompany the officers to the stationhouse for an interview. (276) Salinas was not under arrest nor read his Miranda rights, and left the stationhouse shortly after answering the officers' questions. (277) During the non-custodial interview, when the officers asked Salinas if his shotgun would match the shells recovered at the murder scene, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up. (278) Fifteen years later, Salinas was charged with the murders, and at trial the prosecutor introduced Salinas's silence to the officers' question as evidence of guilt. (279) Salinas was convicted and on appeal both the Court of Appeals of Texas and the Texas Court of Criminal Appeals affirmed because Salinas's "prearrest, me-Miranda silence was not 'compelled' within the meaning of the Fifth Amendment." (280)

Despite hope that the Supreme Court's grant of certiorari would resolve the issue of pre-arrest silence, a plurality of the deeply divided Court declined to reach the question and held that the privilege did not apply because Salinas failed to expressly invoke it, as required by the Fifth Amendment, during the noncustodial interview. (281) Thus, "the prosecution's use of [Salinas's] noncustodial silence did not violate the Fifth Amendment." (282) Concurring, Justices Thomas and Scalia argued that even if Salinas had expressly invoked the privilege during the interview, "the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony" at trial. (283) The Justices then criticized Griffin's "indefensible foundation" in the Constitution's "text, history, or logic" and argued against extending Griffin to prohibit prosecutorial comments on pre-arrest silence. (284)

As a result of the Court's failure to resolve the issue, there remains today a discordant body of law throughout the United States regarding the propriety of prosecutorial comments on criminal defendants' pre-arrest silence. By failing to cure this split in authority, the Court in Salinas allowed the turmoil created by Griffin's deviation from the compulsion analysis to continue.

V. WHERE DO WE GO FROM HERE? THE COMPULSION ANALYSIS IN ACTION

Although it is unlikely that the Supreme Court will overrule Griffin, doing so would throw Griffin's adverse comment issue back to individual jurisdictions. Prior to Griffin, most jurisdictions had already enacted statutes proscribing adverse comments on criminal defendants' failure to testify at trial. (285) If the Court overrules Griffin and a sufficient number of jurisdictions reconsider their positions on the issue so as to cause a split on the matter, the question will undoubtedly find its way back to the Supreme Court. At that point, the proper course of action for the Court would be to evaluate the question under the compulsion analysis.

The preceding scenario is improbable because the rule against adverse comments on trial silence has by now found "wide acceptance in the legal culture." (286) This is not a sufficient reason, though, to extend the Griffin rule into areas where it does not yet apply, such as to adverse comments on pre-arrest silence, because "neither logic nor history can be marshaled in defense of [it]." (287) Rather, any prohibition on the use of pre-arrest silence as evidence of guilt under the Self-Incrimination Clause must be accomplished under the compulsion analysis. Although Justice Thomas and Scalia's concurrence in Salinas gauged the pre-arrest issue under the compulsion analysis and concluded that allowing adverse comments on pre-arrest silence did not amount to compulsion, (288) a more thorough evaluation under the compulsion inquiry reveals a contrary conclusion.

Allowing prosecutors to make adverse comments at trial regarding criminal defendants' pre-arrest silence would place individuals who are in non-custodial encounters with police in the same "impossible predicament" that the privilege against self-incrimination originally sought to prevent--being forced to choose between remaining silent where that silence may be used against them in a future criminal proceeding as evidence of a "consciousness of guilt;" (289) falsely denying guilty where those false statements will create criminal penalties and obstruction of justice charges, (290) and responding to officers' questions honestly where such responses may constitute an admission of guilt. Cornering a suspect like this into admitting guilt, remaining silent, or falsely denying guilt parallels the cruel trilemma that initially created the historic privilege against self-incrimination that is embodied in the Fifth Amendment. (291) Thus, allowing adverse comments on pre-arrest silence will compel individuals in non-custodial encounters with police to waive the privilege and respond to questions, possibly incriminating themselves in the process.

Accordingly, unlike the consequences for admitting a criminal defendant's trial silence as evidence of guilt, the consequences for admitting a defendant's pre-arrest silence constitute compulsion in violation of the Self-Incrimination Clause. (292) The only remedy against the resultant cruel trilemma is to prohibit prosecutors from using pre-arrest silence as evidence of guilt. If pre-arrest silence is inadmissible at trial as substantive evidence, individuals will not feel compelled to waive their privilege and speak during encounters with police, as juries will not have access to that information. Such are the constitutional liberties the Self-Incrimination Clause is designed to safeguard.

Although the foregoing compulsion analysis is the most effective mechanism with which to confront self-incrimination problems, another approach articulated by the Court may also guide lower courts in light of Griffin. In McGautha v. California, the Court expounded that the threshold question is whether compelling a criminal defendant to choose between either waiving the privilege, or asserting the privilege and sustaining a negative consequence "impairs to an appreciable extent any of the policies behind" the privilege against self-incrimination. (293) If the Court ultimately provides lower courts with a formulation of the exact policy objectives underlying the privilege that is both conscientious and well-defined, (294) the standard set forth in McGautha will be a useful framework for tackling self-incrimination cases where the existence of compulsion is not readily apparent--such as the adverse comments addressed in Griffin. (295)

VI. CONCLUSION

The privilege against compelled self-incrimination emerged first as the product of religious and political persecution, as defendants before the English Church and State fought unceasingly in self-defense for a right against being compelled to incriminate themselves under oath. (296) That right crystallized in the English common law and migrated to the colonies, where the Founding Fathers incorporated it into the Constitution of the newly-established United States. (297) The language of the Fifth Amendment's Self-Incrimination Clause explicitly prohibits compelling individuals to incriminate themselves. (298) However, the privilege's meaning has been distorted in recent years by a judicially active Supreme Court that has strayed from constitutional foundations. (299) As a result, the instability in self-incrimination interpretation and a split among jurisdictions regarding prosecutorial comments on pre-arrest silence have detrimentally impacted criminal procedure throughout the United States. (300)

Nonetheless, the current turmoil surrounding the Self-Incrimination Clause can be tempered by a return to the compulsion analysis. (301) As the tribunal that all others look to in times of uncertainty, the Supreme Court's reestablishment of the compulsion analysis as the primary tool with which to address self-incrimination questions will return the privilege to constitutional footing and prevent future turbulence in its interpretation. (302) More importantly, the Court in future years must be "more circumspect before bending constitutional principles in the service of what it takes to be the fairer result in an individual case." (303) As such, it must stay true to the privilege's language, history, and logic. (304) "A legal system that ignores the truth is simply not doing its job, and neither is a court that cannot make the Constitution cohere." (305)

(1) People v. Griffin, 60 Cal. 2d 182, 186 (1963), rev'd sub nom. Griffin v. California, 380 U.S. 609(1965).

(2) Griffin, 60 Cal. 2d 186-87.

(3) Id.

(4) Id. at 187.

(5) Id. at 185, 187.

(6) Id. at 187-88. At trial, it was revealed that the night before the incident, Essie Mae and her boyfriend, Eddie Seay, met Griffin at a nearby bar and invited him to stay in the living room of their apartment after Griffin asked them for a place to stay for the night. Id. at 185-86. Seay and Essie May went to sleep in the bedroom, but in the middle of the night, Seay awoke to the sound of Griffin and Essie May struggling in the living room. Id. at 186. During the night, when Essie May had gotten up to use the bathroom, Griffin put his hand over her mouth and sexually assaulted her. Id. Seay took Griffin downstairs, Griffin struck him multiple times, and Seay broke away and ran to the nearby bar for help. Id. Upon Seay's return, Griffin and Essie Mae were gone; Seay never saw Essie Mae alive again. Id.

(7) Griffin v. California, 380 U.S. 609, 609 (1965).

(8) Id. at 610-11 (internal quotations marks omitted).

(9) Id. at 609.

(10) Id. at 611.

(11) U.S. Const, amend. V (emphasis added); Lakeside v. Oregon, 435 U.S. 333, 339 (1978) ("By definition, a necessary element of compulsory self-incrimination is some kind of compulsion.") (internal quotation marks omitted); see infra notes 219, 242-48 and accompanying text.

(12) See, e.g., Salinas v. Texas, 133 S. Ct. 2174, 2184-85 (2013) (Thomas, J., joined by Scalia, J., concurring).

(13) Griffin, 680 U.S. at 614-15.

(14) See infra notes 242-48 and accompanying text.

(15) Griffin, 680 U.S. at 614; infra notes 242-48 and accompanying text.

(16) See Salinas, 133 S. Ct. at 2184 (Thomas, J., joined by Scalia, J., concurring) ("Griffin is impossible to square with the text of the Fifth Amendment.... Nor does the history of the Fifth Amendment support Griffin."); Mitchell v. United States, 526 U.S. 314, 335-36 (1999) (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting) ("[T]he text and history of the Fifth Amendment give no indication that there is a federal constitutional prohibition on the use of the defendant's silence as demeanor evidence.... The Court's decision in Griffin did not even pretend to be rooted in a historical understanding of the Fifth Amendment."); id. at 341 (Thomas, J., dissenting) (stating that Griffin "lacks foundation in the Constitution's text, history, or logic"); see infra notes 242-48 and accompanying text.

(17) See infra Part IV.B.

(18) See supra note 16; see infra Part IV.B.

(19) Cf. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) ("As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom").

(20) Letter from Thomas Jefferson to Judge Spencer Roane (Sept. 6, 1819), in 12 The Works of Thomas Jefferson 135-38 (Paul Leicester Ford ed., 1905).

(21) John Henry Wigmore, Evidence in Trials at Common Law [section] 2251 (John T. McNaughton rev. ed. 1961) [hereinafter 8 Wigmore on Evidence]; see Mark Berger, Taking the Fifth: The Supreme Court and the Privilege Against Self-Incrimination 216 (Lexington Books 1980) ("[T]he Court has not been inclined to meaningfully consider and evaluate what the privilege means...."); Akhil Reed Amar & Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L. Rev. 857, 858 (1995) ("The Supreme Court's interpretation of the Fifth Amendment is currently in a jumbled transitional phase."); Stephen A. Saltzburg, The Required Records Doctrine: Its Lessons for the Privilege Against Self-Incrimination, 53 U. Chi. L. Rev. 6, 6-10 (1986) (discussing the lack of an accepted theory for the privilege); see infra Part IV.A (discussing the Court's inconsistent policy rationales for the privilege).

(22) Murphy v. Waterfront Comm'n, 378 U.S. 52, 56 n.5 (1964) (alterations and internal quotation marks omitted), abrogated by United States v. Balsys, 524 U.S. 666 (1998).

(23) See infra Parts IV.A, IV.C.

(24) See, e.g., Lakeside v. Oregon, 435 U.S. 333, 345 n.5 (1978) (Stevens, J., dissenting) ("[T]he roster of scholars and judges with reservations about expanding the Fifth Amendment privilege reads like an honor roll of the legal profession."); Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929, 940-41 (1965) ("The vice of the [Griffin] decision is forever fastening on the fifty states and on the nation a solution, not derivable from the language or history of the self-incrimination clause, that may not be best calculated to achieve its purpose.").

(25) See Salinas v. Texas, 133 S. Ct. 2174, 2184-85 (2013) (Thomas, J., joined by Scalia, J., concurring); Mitchell v. United States, 526 U.S. 314, 331-41 (1999) (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting); id. at 341-43 (Thomas, J., dissenting); Carter v. Kentucky, 450 U.S. 288, 305-07 (1981) (Powell, J., concurring); id. at 307-10 (Rehnquist, J., dissenting); Griffin, 380 U.S. at 617-23 (Stewart, J., joined by White, J., dissenting).

(26) See, e.g., Salinas, 133 S. Ct. at 2178-79 (plurality opinion); Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980) ("Our decision today does not consider whether or under what circumstances pre-arrest silence may be protected by the Fifth Amendment."); United States v. Moore, 104 F.3d 377, 388 (D.C. Cir. 1997) (noting the Supreme Court's silence on the subject of a pre-arrest exception to the Griffin exclusionary rule).

(27) See infra Part IV.C. See generally, e.g., Combs v. Coyle, 205 F.3d 269, 282-83 (6th Cir. 2000); Weitzel v. State, 384 Md. 451, 455-61 (2004); David S. Romantz, "You Have the Right to Remain Silent": A Case for the Use of Silence as Substantive Proof of the Criminal Defendant's Guilt, 38 Ind. L. Rev. 1 (2005).

(28) Compare, e.g., United States v. Love, 767 F.2d 1052 (4th Cir. 1985) (affirming convictions where police officer testified that defendants, pre-arrest, failed to explain their presence at the scene of the crime), with Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989) (overturning conviction based on admission of police officer's testimony that defendant refused to speak during questioning where officers had not yet arrested or Mirandized him).

(29) Salinas, 133 S. Ct. 2174, 2179 (2013) (plurality opinion).

(30) Id see infra Part IV.C (discussing the Salinas case).

(31) Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 46 (Yale Univ. Press 1997).

(32) See infra Part V.

(33) See infra Parts II, V.

(34) See infra Part IV.B, IV.C.

(35) See infra Parts IV.C, V.

(36) Ullmann v. United States, 350 U.S. 422, 438 (1956) (internal quotation marks omitted).

(37) Quinn v. United States, 349 U.S. 155, 161 (1955).

(38) Wigmore mapped the history and evolution of the privilege against self-incrimination initially in John H. Wigmore, Nemo Tenetur Seipsum Prodere, 5 Harv. L. Rev. 71 (1891); in expanded form in John H. Wigmore, The Privilege Against Self-Incrimination; Its History, 15 Harv. L. Rev. 610 (1902); and in final form in 8 Wigmore on Evidence, supra note 21. He is renowned for his ten-volume Treatise on the Anglo-American System of Evidence in Trials at Common Law, which legal scholars regard as one of the greatest treatises on law ever written. See, e.g., Charles T. McCormick, Wigmore, Nation's Greatest Legal Scholar, Passes, 6 Tex. B. J. 154, 154 (1943).

(39) See Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (1968). Professor Levy's work has won the Pulitzer Prize for History. See 1969 Winners, The Pulitzer Prizes, http://www.pulitzer.org/awards/1969 (last visited Apr. 29, 2015).

(40) See Levy, supra note 39, at 329-32.

(41) See, e.g., Henry Smith, The Modern Privilege: Its Nineteenth-Century Origins, in The Privilege Against Self-Incrimination: Its Origins and Development 145 (R. H. Helmholz ed., 1997) (tracing the privilege's origin to changes in England's rules of evidence in criminal cases); Katharine B. Hazlett, The Nineteenth Century Origins of the Fifth Amendment Privilege Against Self-Incrimination, 42 Am. J. Legal Hist. 235 (1998) (tracing the privilege's development to the fusion between two English common law rules of evidence--the witness privilege and the confession rule--during the nineteenth century); John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047, 1047, 1068-69, 1083-85 (1994) (asserting that the privilege developed when rules of criminal procedure finally permitted defendants to be represented by counsel in the eighteenth century); Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086, 1100 (1994) (arguing that colonial criminal procedure actually depended on self-incrimination); infra note 42 and accompanying text. But see Leonard W. Levy, Origins of the Fifth Amendment and its Critics, 19 Cardozo L. Rev. 821, 860 (1997) (responding to historians who disagree with the views expressed in Levy, supra note 39 and defending his text on contemporary grounds: "On reflection, I must conclude that, notwithstanding my critics, if I were rewriting the book I would make no significant changes.").

(42) See, e.g., R. H. Helmholz, Origins of the Privilege Against Self-Incrimination: The Role of the European Ius Commune, 65 N.Y.U. L. Rev. 962, 963-64, 967, 969 (1990); Michael R. T. MacNair, The Early Development of the Privilege Against Self-Incrimination, 10 O.J.L.S. 66, 67 (1990).

(43) See Helmholz, supra note 42, at 969.

(44) See, e.g., id. at 989-90 ("None of the evidence presented here means that we owe the modern privilege against self-incrimination directly to the Roman and canon laws. The privilege became a part of our law because the [English] common lawyers took up its cause, embraced, and expanded it.").

(45) See Langbein, supra note 41, at 1047-48 (distinguishing between two historic models of the criminal trial: the "accused speaks" trial prior to allowing defense attorneys for criminal defendants, and the "testing the prosecution" trial when defense attorneys were allowed for criminal defendants).

(46) Id. at 1052, 1084.

(47) Id. at 1084.

(48) See id. at 1066-71, 1084. But see Levy, Origins of the Fifth Amendment and its Critics, supra note 41, at 843-49 (stating that Langbein's argument overlooks the privilege's origin before the eighteenth century in cases where criminal defendants without counsel asserted the privilege, and that defense counsel "solidified the [privilege] rather than created it").

(49) Magna Carta and its American Legacy, The U.S. Nat'l Archives & Rec. Admin., http://www.archives.gov/exhibits/featured documents/magnacarta/legacy.html (last visited Apr. 29, 2015). The agreement was written by a group of rebellious feudal barons who demanded that the despotic King recognize certain rights for all free Englishmen and accept that his will was not arbitrary. See id. For the complete translation of the 1297 Version of Magna Carta, see Nicholas Vincent, Magna Carta Translation, The U.S. Nat'l Archives & Rec. Admin. (2007), http://www.archives.gov/exhibits/featured_documents/magna_carta/translation.html [hereinafter Magna Carta].

(50) See Magna Carta, supra note 49.

(51) Magna Carta, supra note 49, [paragraph] 29 ("No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.").

(52) See Magna Carta, supra note 49. More than half a century later, in 1776, Thomas Paine wrote in Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." Jethro K. Lieberman, A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues From Abortion to Zoning 436 (1999) (internal quotation marks omitted). Nearly two centuries after that, the U.S. Supreme Court upheld the principle of the rule of law by emphasizing that even the president was bound by it. See United States v. Nixon, 418 U.S. 683, 696 (1974) (declining to recognize President Richard M. Nixon's claim that the Constitution grants the chief executive plenary power to do as he wills, and holding that "the Executive Branch ... and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce [the rule of law]"); see also Clinton v. Jones, 520 U.S. 681, 692-702 (1997) (holding that President Bill Clinton's status as chief executive did not immunize him from a sexual harassment charge that allegedly occurred before he became president).

(53) See Magna Carta, supra note 49.

(54) See, e.g., Mass. Const, of art. XII (1780) ("And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land."); N.Y. Const, of [section] XIII (1777) ("[T]hat no member of this State shall be disfranchised, or deprived of any the rights or privileges secured to the subjects of this State by this constitution, unless by the law of the land, or the judgment of his peers."); accord Md. Const. [section][section] XVII, XXI (1776); N.C. Const. [section] XII (1776); N.H. Const. [section] XV (1784); S.C. Const, of [section] XLI (1778); Va. Const, of [section] 8 (1776). Additionally, in proclaiming the governance of areas outside of the individual states, the Continental Congress stated: "No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land." The Northwest Territorial Government, Ordinance of 1787 1 Stat. 50, art. II (1787).

(55) Just as Magna Carta was deemed superior to other statutes, the U.S. Constitution became "the supreme Law of the Land." U.S. Const, art. VI, cl. 2.

(56) The Fifth Amendment to the U.S. Constitution provides that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law," which is a direct descended of Magna Carta's guarantee of proceedings according to the "law of the land." U.S. Const, amend. V.

(57) Levy, supra note 39, at 51.

(58) Professor Levy describes the adversarial system as "accusatorial." See, e.g., id. at 39. Several Supreme Court opinions express the term that way as well. See, e.g., Malloy v. Hogan, 378 U.S. 1, 7 (1964). For purposes of consistency, this Article uses the term "adversarial."

(59) See Levy, supra note 39, at 13-14, 30, 39-10. The U.S. Supreme Court has described the adversarial system as one that best advances truth and fairness. See, e.g., Penson v. Ohio, 488 U.S. 75, 84 (1988); Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981); see also Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964) (stating that the adversarial system requires "the government in its contest with the individual to shoulder the entire load"), abrogated by United States v. Balsys, 524 U.S. 666 (1998).

(60) See Levy, supra note 39, at 35, 39; infra notes 141143-45 and accompanying text. Justices of the peace were "county officials who ha[d] been called the government's 'men-of-all work' and whose duties included police and administrative functions as well as judicial functions." Levy, supra note 39, at 35.

(61) See infra notes 146-49 and accompanying text.

(62) See Levy, supra note 39, at 39.

(63) See id. at 19-24. The ecclesiastical courts were governed by canon law. See id. at 43. "Canon" is the law of the church, and "canon law" is a body of Roman ecclesiastical jurisprudence. See Black's Law Dictionary 206 (6th ed. 1990). Ecclesiastical jurisdiction included all matters involving the clergy, church property, spiritual matters such as marriage and sexual conduct, and criminal offenses such as defamation, public intoxication, disorderly conduct, and certain breaches of contract. See Levy, supra note 39, at 43-44. Surprisingly, prior to Pope Innocent III's procedural reforms, the Roman Catholic Church had an equivocal policy toward heretics, and a substantially adversarial system of criminal procedure. Id. at 20-21. Moreover, the Church had maintained "an abhorrence of some of the very features that shortly proved most characteristic of the Inquisition" under Innocent III's reforms. Id. at 21.

(64) See Levy, supra note 39, at 39-40.

(65) See id. at 23, 39.

(66) Id.

(67) See id. at 27.

(68) See id. at 23, 27. The oath ex officio was originally called the oath de veritate dicenda. Id. at 23. It became known in England as the oath ex officio because the ecclesiastical judge "compelled it by virtue of his office." Id. at 46.

(69) See Levy, supra note 39, at 23-24.

(70) See id.

(71) See id. at 23-24.

(72) See, e.g., Doe v. United States, 487 U.S. 201, 212 (1988) (stating that the policies behind the privilege against self-incrimination include the Court's unwillingness "to subject [individuals] to the cruel trilemma of self-accusation, perjury or contempt") (internal quotation marks omitted).

(73) See Berger, supra note, 21, at 6.

(74) See Levy, supra note 39, at 23-24, 268-69, 330 (describing the oath as a form of spiritual torment that was "likened to drawing one's blood, running oneself upon the pikes, or cutting one's throat with one's tongue"). In 1789, Senator William Maclay of Pennsylvania wrote that forcing oaths that "extort[ed] evidence from any person was a species of torture, and inconsistent with the spirit of freedom." Journal of William Maclay, United States Senator from Pennsylvania, 1789-1791, at 92-93 (Edgar S. Maclay ed., 1890), available at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(mj0019)). The Supreme Court has also interpreted the meaning of "compelled testimony" via reference to inquisitorial procedure. See, e.g., Andresen v. Maryland, 427 U.S. 463, 470 (1976) ("As the Court often has noted, the development of [the privilege against self-incrimination] was in part a response to certain historical practices, such as ecclesiastical inquisitions and the proceedings of the Star Chamber, which placed a premium on compelling subjects of the investigation to admit guilt from their own lips.") (internal quotation marks omitted); infra note 2268 and accompanying text. Likewise, the Court has described inquisitorial procedure as adverse to the right of self-representation implicit in the Sixth Amendment. See Faretta v. California, 422 U.S. 806, 821-23 (1975). Nonetheless, some modern scholars contend that specific proceedings in the United States are organized according to inquisitorial structure--such as federal grand jury proceedings. E.g., Abraham S. Goldstein, Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure, 26 Stan. L. Rev. 1009, at 1020 (1974) (discussing the inquisitorial character of the grand jury). For example, grand juries operate under loose rules of procedure and employ a general rule of secrecy. See Fed. R. Crim. P. 6(e)(2); Butterworth v. Smith, 494 U.S. 624, 629-36 (1990). Furthermore, the grand jury can summon a witness without informing the witness what the grand jury is investigating or that the witness may be indicted as a result of the inquiry. See United States v. Washington, 431 U.S. 181 (1977). Additionally, the grand jury may exclude the witness's lawyer during the witness's testimony. See United States v. Mandujano, 425 U.S. 564 (1976). Finally, in grand jury proceedings, the exclusionary rule does not apply; the grand jury may draw on any information gleaned from an unlawful search and seizure. See United States v. Calandra, 414 U.S. 338 (1974). For a proposal to introduce more adversarial protections in grand jury proceedings, see Peter Arenella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication, 78 MICH. L. Rev. 463 (1980). For an examination of the influence of anti-inquisitorialism in American criminal law, see David Alan Sklansky, Anti-Inqqisitorialism, 122 Harv. L. Rev. 1634 (2009).

(75) Levy, supra note 39, at 49.

(76) id.

(77) See id. at 49-53.

(78) See id.

(79) See id.

(80) The royal prerogative is the lawful authority of the Crown--a body of customary authority, privilege, and immunity that belongs to the sovereign alone. Levy, supra note 39, at 208.

(81) See Kenneth S. Broun et al., McCormick on Evidence [section] 114, at 193 (6th ed. 2006); 8 Wigmore on Evidence, supra note 21, [section] 2250, at 281 & n.61 (citing Stat. 3 Hen. VII c. 1 (1487)). The Court of Star Chamber tried cases that included disobedience to royal orders, riots, contempts, libels, forgery, counterfeiting, and fraud. See Levy, supra note 39, at 49, 100. It was called the Court of Star Chamber because the ceiling of the chamber in which it convened was ornamented with stars. Id. at 49.

(82) See Levy, supra note 39, at 49-50.

(83) Id. at 50, 101.

(84) See id. At 51-53; Berger, supra note 21, at 7.

(85) The five English sovereigns of the Tudor dynasty ruled England for 118 eventful years, from 1485 to 1603, and included Henry VII, his son Henry VIII, and Henry VIII's three children, Edward IV, Mary I, and Elizabeth I. The Tudors, The Official Website of the Brit. Monarchy, http://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensofEngland/TheTudors/ TheTudors.aspx (last visited Apr. 29, 2015).

(86) The English Reformation was, in part, a result of the wider Protestant Reformation on the European continent. See Ethan H. Shagan, Popular Politics and the English Reformation 1-2 (2003). The Protestant Reformation was a religious and political movement that affected the practice of Christianity across most of Europe, beginning when early Protestants such as Martin Luther and John Calvin initiated a schism with Roman Catholicism. See generally 16th Century Reformation Reading Room, Tyndale U. C. & Seminary, http://www.tvndale.ca/seminarv/mtsmodular/reading-rooms/historv/16th-centurv (last visited Apr. 29, 2015providing access to resources on the Protestant Reformation).

(87) See Act of Supremacy, 26 Hen. VIII c. 1 (1534); Levy, supra note 39, at 68-69. "The catalyst for this decision was the refusal of the Pope to annul the marriage of Henry VIII and Catherine of Aragon, but underlying this was a Tudor nationalist belief that authority over the English Church properly belonged to the English monarchy." Detailed History, The Church of England, http://www.churchofengland.org/about-us/history/detailedhistory.aspx (last visited Apr. 29, 2015) [hereinafter Detailed History].

(88) See Levy, supra note 39, at 68-75.

(89) See id. at 75.

(90) See id. at 75-77.

(91) See id. at 76-77.

(92) See id. at 75-77.

(93) See Levy, supra note 39, at 73-75, 83-87. Attempting to make England Protestant without alienating the portion of the population that had supported Catholicism under Mary, Elizabeth initiated a religious settlement that sought to provide England a via media between Roman Catholicism and Reformed Protestantism. See id. (explaining how Elizabeth's religious settlement was "marvelously calculated to capture the loyalties of as many Englishmen as possible and to offend the fewest"). Accordingly, Elizabeth's religious settlement "gave the Church of England the distinctive identity that it has retained to this day." Detailed History, supra note 878.

(94) See id. at 109-27.

(95) See id. at 119-26. Non-conformists were "English Protestants who refused Anglican uniformity." 10 The Catholic University of America, The New Catholic Encyclopedia 418 (2d ed. 2002). "They favored local autonomy in church government, and many wished to limit the powers of the monarchy and even separate Church and State." Id.

(96) See Levy, supra note 39, at 126-31.

(97) See id. at 181-84, 203-04, 270.

(98) See id. at 79, 136-204. Opposition to the Star Chamber's administration of the oath ex officio was a rarity until the seventeenth century because defendants before the Star Chamber were typically provided with a written copy of the charges against them prior to swearing the oath. See id. at 101, 271-75; see also infra notes 1234-33 and accompanying text (describing the first major opposition to the oath ex officio before the Court of Star Chamber).

(99) See Levy, supra note 39, at 48-49, 208, 217-28 (discussing the jurisdictional clash between the English common law and ecclesiastical courts up to the early seventeenth century).

(100) Levy, supra note 39, at 263. That the subject of compulsory self-incrimination was becoming a matter of popular interest during the early seventeenth century was evidenced by William Shakespeare's allusion to it in Hamlet, first printed in 1603, in which King Claudius soliloquized:

   In the corrupted currents of this world
   Offence's gilded hand may shove by justice,
   And oft 'tis seen the wicked prize itself
   Buys out the law: but 'tis not so above;
   There is no shuffling, there the action lies
   In his true nature; and we ourselves compell'd,
   Even to the teeth and forehead of our faults,
   To give in evidence.


William Shakespeare, The Tragedy of Hamlet, Prince of Denmark Act III, Scene 3.

(101) Berger, supra note 21, at 14. For the full text of the maxim and its translation, see Wigmore, Nemo Tenetur Seipsum Prodere, supra note 38, at 83 & n.2. For a modified translation, see Helen Silving, The Oath: I, 68 Yale L.J. 1329, 1367 (1959).

(102) See Levy, supra note 39, at 265.

(103) See id. at 428-30.

(104) See Brown v. Walker, 161 U.S. 591, 595-96 (1896).

(105) See Bram v. United States, 168 U.S. 532, 543-44 (1897). In Miranda v. Arizona, the United States Supreme Court described the nemo tenetur maxim's influence on the modern-day privilege embodied in the Fifth Amendment: "The maxim 'Nemo tenetur seipsum accusare,' had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which (have) long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, (were) not uncommon even in England.... [H]owever adopted, [the maxim] has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." 384 U.S. 436, 442-43 (1966) (internal quotation marks omitted).

(106) Levy, supra note 39, at 51, 170-71; see Magna Carta, supra note 49 and accompanying text.

(107) See Levy, supra note 39, at 171; Magna Carta, supra note 49, [paragraph] 28 ("No bailiff is henceforth to put any man on his open law or on oath simply by virtue of his spoken word, without reliable witnesses being produced for the same.").

(108) See Levy, supra note 39, at 171-72 (examining inaccuracies in the argument that Magna Carta supported a right against self-incrimination).

(109) See id. at 171-72, 232-38 (examining opposition to inquisitorial procedure based on Chapters Twenty-Eight and Twenty-Nine of Magna Carta).

(110) The Stuarts ruled England from 1603 to 1714--an era of intense instability and war. The Stuarts, The Official Website of the Brit. Monarchy, http://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdomyT heStuarts/TheStuarts.aspx_(last visited Apr. 29, 2015). This Article discusses the first three Stuart kings, James I (r. 1603-1625), Charles I (r. 1625-1649), and Charles II (r. 1660-1685).

(111) Accord, e.g., Quinn v. United States, 349 U.S. 155, 161 (1955) ("As early as 1650, remembrance of the horror of Star Chamber procedings [sic] a decade before had firmly established the privilege in the common law of England. Transplanted to this country as part of our legal heritage, it soon made its way into various state constitutions and ultimately in 1791 into the federal Bill of Rights."); accord Pennsylvania v. Muniz, 496 U.S. 582, 596 (1990); Doe v. United States, 487 U.S. 201, 212 (1988); Andresen v. Maryland, 427 U.S. 463,470 (1976); Michigan v. Tucker, 417 U.S. 433,439-40 (1974).

(112) See Levy, supra note 39, at 207, 213; James I (r. 1603-1625), The Official Website of the Brit. Monarchy, http://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdom/T heStuarts/JamesI.aspx (last visited Apr. 29, 2015).

(113) See Levy, supra note 39, at 232-38.

(114) See id. at 217-28.

(115) See id. When issued by a common law court, a writ of prohibition stopped all ecclesiastical proceedings against a defendant until a hearing before a common law judge determined "whether any illegality on the part of the ecclesiastical court vitiated its action or infringed a common-law right." Id. at 220. The writ also barred the ecclesiastical court's administration of the oath ex officio, much to the consternation of church officials. Berger, supra note 21, at 13.

(116) See Levy, supra note 39, at 230.

(117) Although the Court of Star Chamber employed inquisitorial procedure, its methods were rarely opposed before King Charles I's reign. See id. at 101, 271-75; supra note 989.

(118) See Levy, supra note 39, at 266, 270-71; Charles I (r. 1625-1649), The Official Website of the Brit. Monarchy, http://www.royal.gov.Uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdom/T heStuarts/CharlesI.aspx (last visited Apr. 29, 2015).

(119) See Edward Cardwell, 2 Documentary Annals of the Reformed Church of England 217-21 (Harvard Univ. Press 1839). The reasoning behind the pro confesso rule was that innocent persons had nothing to hide because the truth would not hurt them; only the guilty had reason to refuse to comply with the oath ex officio. Levy, supra note 39, at 269.

(120) See Griffin v. California, 380 U.S. 609, 620 (1965); Levy, supra note 39, at 34-35.

(121) Levy, supra note 39, at 271.

(122) See id. at 270-71.

(123) See Levy, supra note 39, at 271-72. Lilbure was known as "Freeborn John" because of his "insistent reference to the rights of every freeborn Englishman." Id. at 272.

(124) Miranda v. Arizona 384 U.S. 436, 458-60 (1966) ("Perhaps the critical historical event shedding light on [the privilege's] origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. He resisted the oath and declaimed the proceedings, stating: 'Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.' On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England. These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights. Those who framed our Constitution and the Bill of Rights knew that 'illegitimate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure.' The privilege [against self-incrimination] was elevated to constitutional status and has always been 'as broad ad [sic] the mischief against which it seeks to guard.' We cannot depart from this noble heritage."); accord Ullman v. United States, 350 U.S. 422, 446-47 (1956)_(Douglas, J., dissenting); Adamson v. California, 332 U.S. 46, 88 n.14 (1947) (Black, J., dissenting); see also Silving, supra note 1012, at 1368 ("Obviously the [nemo tenetur] maxim was so understood by 'Freeborne John' Lilburne, who defied the Council of the Star Chamber, and secured the celebrated granting of the self-incrimination privilege.").

(125) Levy, supra note 39, at 273.

(126) Id.

(127) Berger, supra note 21, at 16 (internal quotation marks omitted); Levy, supra note 39, at 273.

(128) See Levy, supra note 39, at 273-76.

(129) Levy, supra note 39, at 276.

(130) See id. at 276-77.

(131) See id. at 278.

(132) See id. at 278-85. On a broader scale, the Long Parliament's formation instigated the English Civil War--a series of wars between 1640 and 1660 that pitted Parliament against King Charles I and his son King Charles II. See Daniel R. Coquillette, The Anglo-American Legal Heritage: Introductory Materials 363-64, 366-368 (Carolina Academic Press, 2d ed. 1999); 30 Charles Alan Wright et al., Federal Practice & Procedure Evidence [section] 6343 (1st ed. 2000). In 1649, Parliament tried King Charles I for high treason, during which Charles I refused to plead to the charge and, ironically, was held pro confesso on the charge and sentenced to death by beheading. Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold 150, 165-75 (Vintage, New Ed ed. 2005).

(133) Levy, supra note 39, at 281-82. The statute abolishing the Court of Star Chamber declared that its procedures introduced "an arbitrary power and government" that violated Chapter Twenty-Nine of Magna Carta. Id. at 282 (internal quotation marks omitted). The statute abolishing the Court of High Commission made it a criminal offense for the ecclesiastical courts to administer the oath ex officio. Id. For the full text of the two statutes, see 5 Statutes of the Realm: 1628-80, at 110-13 (John Raithby ed., 1819). In 1662, Parliament abolished the oath ex officio completely from all proceedings. See Poor Relief Act 1662, 13 Car. II c. 12 (1662); Wigmore, Nemo Tenetur Seipsum Prodere, supra note 38, at 82. Finally, in 1725, the Council of Rome itself abolished the oath ex officio. Levy, supra note 39, at 24.

(134) See Levy, supra note 39, at 313-20 (describing prominent cases that recognized the privilege against self-incrimination). Surprisingly, the first time a judge voluntarily apprised a criminal defendant of the privilege against self-incrimination was in 1660, when the Crown tried the regicides who had executed Charles I. See id. at 313-14.

(135) 8 Wigmore on Evidence, supra note 21, [section] 2250, at 289-90.

(136) See Levy, supra note 39, at 325.

(137) See id. at 336-37. The charters included those of Virginia in 1606, New England in 1620, Massachusetts Bay in 1629, and Maryland in 1632. Id. By the mid-seventeenth century, several colonies also incorporated the privilege against self-incrimination into their early legal codes. See e.g., Massachusetts Body of Liberties [paragraph] 61 (1641).

(138) See Levy, supra note 39, at 368-69. In 1735, Benjamin Franklin characterized the privilege as "one of the common Rights of Mankind." Benjamin Franklin, Some Observations on the Proceedings Against the Rev. Mr. Hemphill (1735).

(139) Levy, supra note 39, at 375; see also, e.g., Miranda v. Arizona, 384 U.S. 436, 526 (1966) (White, J., dissenting) ("As for the ... common-law history, the privilege ... was never applied except to prohibit compelled judicial interrogations.").

(140) Mitchell v. United States, 526 U.S. 314, 332-33 (1999) (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting) (asserting that this fact "strongly suggests that Griffin is out of sync with the historical understanding of the Fifth Amendment").

(141) See Levy, supra note 39, at 35, 325. "Pretrial examinations became routine under two statutes passed during the reign of Queen Mary in the 16th century, 1 & 2 Phil. & M., c. 13 (1554), and 2 & 3 id., c. 10 (1555)." Crawford v. Washington, 541 U.S. 36, 43-44 (2004). In the eighteenth century, the common law established the legal rule that confessions obtained by threats or promises of rewards were not freely given and were thus inadmissible as evidence at trial. 3 John Henry Wigmore, Evidence in Trials at Common Law [section][section] 819-820, 823, at 296-97, 337 (John T. McNaughton rev. ed. 1961). Although the rule against coerced confessions developed under a separate rationale from the privilege against self-incrimination, both legal principles involved the involuntary acknowledgment of guilt and shared one important motivating factor--the common law's aversion to coercing the criminally accused. The United States Supreme Court first adopted the common law rule against involuntary confessions in 1884. Hopt v. Utah, 110 U.S. 574, 584-85 (1884). Then, the Court integrated the common law confession rule into the Fifth Amendment's privilege against self-incrimination. See, e.g., Malloy v. Hogan 378 U.S. 1, 7 (1964) ("[W]herever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the constitution of the United States commanding that no person 'shall be compelled in any criminal case to be a witness against himself.' Under this test ... the person must not have been compelled to incriminate himself.") (citations omitted). But see Miranda, 384 U.S. at 526 (White, J" dissenting) (stating that there is nothing in our common law history to suggest that the confession rule stems from the privilege against self-incrimination). On the relationship between the common law confession rule and the privilege against self-incrimination, see Levy, supra note 39, at 495-97 n.43; JOHN MacArthur Maguire, Evidence of Guilt: Restrictions Upon its Discovery or Compulsory Disclosure 15-16 (Boston: Little, Brown and Company 1959); Edmund Morris Morgan, Basic Problems of Evidence 129-131 (ABA 1954); Laurence A. Benner, Requiem for Miranda: The Rehnquist Court's Voluntariness Doctrine in Historical Perspective, 67 Wash. U. L. Q. 59, 92-158 (1988); and Lawrence Herman, The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part I), 53 Ohio St. L.J. 101, 170-94 (1992).

(142) See Levy, supra note 39, at 325, 329.

(143) See Mitchell, 526 U.S. at 333 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting).

(144) Levy, supra note 39, at 324. See generally Ferguson v. State of Georgia, 365 U.S. 570, 573-75 (1961) (examining the development of the common law rule barring criminal defendants' testimony); 2 John Henry Wigmore, Evidence in Trials at Common Law [section][section] 575-587 (John T. McNaughton rev. ed. 1961) [hereinafter 2 Wigmore on Evidence] (same). Under that theory, parties in civil cases were also barred from testifying, "for their interest in the event of the litigation was obviously the most marked." 2 Wigmore on Evidence, supra, [section] 577, at 817.

(145) See Ferguson, 365 at 573-75; 2 Wigmore on Evidence, supra note 1446, [section] 576, at 810.

(146) See Mitchell, 526 U.S. at 332-34 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting); Ferguson, 365 at 573-74; 8 Wigmore on Evidence, supra note 21, [section] 2250, at 286.

(147) See Mitchell, 526 U.S. at 333-34 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting); Ferguson, 365 at 573-74; 2 Wigmore on Evidence, supra note 1446, [section] 575, at 809. "The prosecution had the burden of proving guilt ... but if the defendant, whose testimony was the focal point of the trial, did not satisfactorily contest the prosecution's case, if, that is, he remained silent, resting on a claim that the law did not oblige him to accuse himself, he could rely on a verdict of guilty." Levy, supra note 39, at 264-65.

(148) See Levy, supra note 39, at 323; supra notes 45-48 and accompanying text. Criminal defendants were previously not afforded such rights because it was believed that they were unnecessary in determining guilt or innocence. 2 Wigmore on Evidence, supra note 1446, [section] 575, at 809. Today, the United States Constitution affords criminal defendants both the right to counsel and the right to compulsory process for producing witnesses. U.S. Const, amend. VI.

(149) See The Virginia Declaration of Rights (1776), available at http://www.archives.gov/exhibits/charters/virginia_declaration_of_rights.html [hereinafter Virginia Declaration],

(150) For George Mason's original draft, see The Virginia Declaration of Rights: First Draft (1776), available at http://www.gunstonhall.org/georgemason/human_rights/vdr_first_draft.html. Mason's original draft greatly influenced the Declaration of Independence, which the Second Continental Congress adopted twenty-two days later on July 4, 1776. See R. Carter Pittman, The Virginia Declaration of Rights: Its Place in History (1955) (observing that Thomas Jefferson, in creating the preamble to the Declaration of Independence, used the first three paragraphs of George Mason's original draft of the Virginia Declaration of Rights).

(151) Virginia Declaration, supra note 149, [section] 8.

(152) See Levy, supra note 39, at 409-12; Virginia Declaration, supra note 14951 (stating that the Virginia Declaration "was widely copied by the other colonies").

(153) See LEVY, supra note 39, at 409; Virginia Declaration, supra note 14951 (stating that the Virginia Declaration "became the basis of the Bill of Rights").

(154) See Levy, supra note 39, at 421.

(155) See id. at 421-22. For a transcript of Madison's proposed amendments to the House of Representatives, see 1 Annals of Cong. 448-59 (1789) (Joseph Gales ed., 1834) [hereinafter Annals].

(156) Id. at 451-52 (emphasis added).

(157) See Levy, supra note 39, at 423 ("[N]o state, either in its own constitution or in its recommended amendments, had a self-incrimination clause phrased like that introduced by Madison").

(158) See Annals, supra note 1557, at 778-92, 795-809.

(159) See Laurance, John (1750-1810), Biographical Directory OF the United States Congress, http://bioguide.congress.gov/scripts/biodisplay.pl?index=L000120 (last visited Apr. 29, 2015).

(160) See Annals, supra note 1557, at 782.

(161) Id. John Laurance's remark that Madison's proposal was "in some degree contrary to laws passed" sheds light on the purpose behind his motion to amend Madison's language. See Levy, supra note 39, at 425-26. On July 17, 1789--a month before the House considered Madison's proposed amendments--the Senate had passed and sent to the House the bill that became the Judiciary Act of 1789, which established the United States federal judiciary and the Supreme Court of the United States. See id. at 425. However, the House merely read the judiciary bill twice, before putting it off to address Madison's constitutional amendments. See id.; Annals, supra note 1557, at 685. "This delay was due to the fact that the proposed Amendments to the Constitution, then pending in the House, related to many of the most essential matters covered by the [Judiciary] Bill; and if some of these Amendments should be adopted, the Bill must be radically altered." Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 95-96 (1923). At the time, state equity courts had the authority to compel parties to produce pertinent evidence--even if the evidence was potentially adverse to the party producing it. See Levy, supra note 39, at 426; Warren, supra, at 96. Similarly, Section 15 of the judiciary bill granted federal courts the authority to compel civil parties to produce documents with pertinent evidence "under circumstances where [the parties] might be compelled to produce the same by the ordinary rules of proceeding" in equity courts. Levy, supra note 39, at 425-26; see also Warren, supra, at 95-96 (discussing the Senate debate on Section 15 of the judiciary bill). It appears that Section 15 of the judiciary bill was intended to prevent the necessity of instituting equity suits to obtain from an adverse party documents related to a litigated matter. See Geyger's Lessee v. Geyger, 2 U.S. 332, 333 (C.C.D. Pa. 1795). Section 15 granted federal courts the authority to compel parties to produce evidence that could subject them to civil liability. See Levy, supra note 39, at 426. For example, in a federal civil case regarding ownership over real property, the court could compel a party to produce evidence that would prove the other party's ownership. See id. However, Section 15 did not grant federal courts the authority to compel parties to produce criminally incriminating evidence. See id. With the pending Senate judiciary bill in mind, John Laurance may have moved to insert the words "in any criminal case" to retain the existing rule that allowed equity courts to compel non-criminally incriminating evidence. See id. Incidentally, the House ultimately passed the judiciary bill with Section 15 unchanged. See Judiciary Act of 1789, ch. 20 [section] 15,1 Stat. 82 (1789).

(162) See Annals, supra note 1557, at 782;

(163) See id. at 73; 5 Bureau of Rolls and Library, U.S. Dep't of State, Documentary History of the Constitution of the United States of America, 1786-1870, at 187-88 (1905), available at https://archive.org/stream/documentaryhisto05unit#page/186/mode/2up; see also id. at 186-89 (recording the amendments that the House Select Committee reported to the Senate on July 28, 1789).

(164) See Levy, supra note 39, at 426. The Senate's modifications to the other amendments are fairly instructive as to whether the Framers intended the self-incrimination clause to apply beyond the criminal trial. The Senate clustered the procedural rights of criminal defendants after indictment into what would become the Sixth Amendment, signifying that the Sixth Amendment protected the criminal defendant alone. See id.', see also U.S. Const, amend. VI (guaranteeing criminal defendants the right to a speedy and public trial by an impartial jury, notice of pending charges, confrontation of adverse witnesses, compulsory process for favorable witnesses, and the right to counsel). With the addition of the right to counsel, the Sixth Amendment effectively included all of the guarantees that were provided in Section 8 of the Virginia Declaration, with one exception: the privilege against self-incrimination. Compare U.S. Const, amend. VI, with Virginia Declaration, supra note 14951. That the privilege did not fall into the Sixth Amendment indicated that the Framers intended for it to apply beyond the criminal trial to all stages of criminal proceedings. See cf. Counselman v. Hitchcock, 142 U.S. 547, 562-63 (1892) ("It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them.... It is entirely consistent with the language of Article 5 that the privilege of not being a witness against himself is to be exercised in a proceeding before a grand jury."), overruled on other grounds by Kastigar v. United States, 406 U.S. 441 (1972); see also Chavez v. Martinez, 538 U.S. 760, 766-67 (2003) (plurality opinion) (holding that police questioning does not constitute a "criminal case," which "at the very least requires the initiation of legal proceedings"). Aside from these hints, the Framers left little in the way of clues regarding a policy underlying the privilege against self-incrimination. See Levy, supra note 39, at 430.

(165) See Bill of Rights (1791), www.ourdocuments.GOV, http://www.ourdocuments.gov/doc.php?flash=true&doc=13 (last visited Apr. 29, 2015). For a transcription of the twelve proposed amendments in their original form, including the self-incrimination clause in Article Seven, see Transcript of Bill of Rights (1791), WWW.OURDOCUMENTS.GOV, http://www.ourdocuments.gov/doc.php?flash=true&doc=13&page=transcript_(last visited Apr. 29, 2015). For an amendment to become effective, three-fourths of the state legislatures needed to ratify it. U.S. Const, art. V.

(166) See U.S. CONST, amends. I-X; Bill of Rights (1791), supra note 1657. The states ratified Articles Three through Twelve of the proposed amendments. Id:, see Transcript of Bill of Rights (1791), supra note 1657. Article One, which sought to regulate the size of congressional districts for representation in the House of Representatives, was never ratified and technically still remains pending before the states. See Coleman v. Miller, 307 U.S. 433 (1939) (holding that when Congress does not specify a deadline for the ratification of a constitutional amendment, the amendment remains pending before the state legislatures). Over two centuries later, on May 7, 1992, the states finally ratified Article Two--which delays laws affecting Congressional salaries from taking effect until after the next House of Representatives election--as the Twenty-seventh Amendment to the U.S. Constitution, see U.S. Const, amend. XXVII; Bill of Rights (1791), supra note 1657.

(167) See U.S. Const, amend. V.

(168) Id.

(169) Mitchell v. United States, 526 U.S. 314, 334 (1999) (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting) (citing Eben Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in The Privilege Against Self-Incrimination 109 (R. Helmholz et al. eds., 1997)).

(170) Id.; see supra notes 1413-1435 and accompanying text.

(171) See Mitchell, 526 U.S. at 332-34 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting); supra notes 1413-1435 and accompanying text.

(172) Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 Mich. L. Rev. 2625, 2653 (1996) (emphasis added).

(173) See Mitchell, 526 U.S. at 332-34 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting).

(174) Ferguson v. State of Georgia, 365 U.S. 570, 577 (1961) (recognizing Maine's 1864 general competency statute to be "the first such statute in the English-speaking world"). England abolished the testimonial disqualification of criminal defendants in 1898. Id. at 577-78 (citing the Criminal Evidence Act of 1898, 61 & 62 Viet., c. 36 (1898)).

(175) See 2 Wigmore on Evidence, supra note 1446, [section] 579, at 827-29. See generally Ferguson, 365 U.S. at 572-87 (1961) (discussing the history and abolition of criminal defendants' testimonial disqualification).

(176) Mitchell, 526 U.S. at 335 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting) ("The Griffin question did not arise until States began enacting statutes providing that criminal defendants were competent to testify under oath on their own behalf.").

(177) See, e.g., 18 U.S.C.A. [section] 3481 (West, Westlaw through 2014) (providing that the failure of a criminal defendant to testify "shall not create any presumption against him").

(178) See Mitchell, 526 U.S. at 335 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting).

(179) Unif. R. Evid. 23(4) (1953), quoted in Mitchell, 526 U.S. at 335 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting). In 1953, the Uniform Rules of Evidence were adopted by the National Conference of Commissioners on Uniform Laws, and approved by the American Bar Association; in 1954, the Rules were approved by the American Law Institute. Charles T. McCormick, Some High Lights of the Uniform Evidence Rules, 33 Tex. L. Rev. 559, 560 (1955).

(180) Cf. Mitchell, 526 U.S. at 336 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting) (stating that Griffin, "in a breathtaking act of sorcery ... simply transformed legislative policy into constitutional command"); id. at 343 (Thomas, J., dissenting) ("[A]t bottom, Griffin constitutionalizes a policy choice that a majority of the Court found desirable at the time.... This sort of undertaking is not an exercise in constitutional interpretation but an act of judicial willfulness that has no logical stopping point.").

(181) See id. at 335-36 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting).

(182) See Michigan v. Tucker, 417 U.S. 433, 440 (1974) ("Although the constitutional language in which the privilege is cast might be construed to apply only to situations in which the prosecution seeks to call a defendant to testify against himself at his criminal trial, its application has not been so limited."). The first prominent case involving the privilege against compelled self-incrimination was Marbury v. Madison, 5 U.S. 137 (1803), where the Supreme Court dealt with the question of what had become of William Marbury's commission as a justice of the peace, which was signed by the outgoing President but never delivered to Marbury. Id. at 137. After the Court called Levi Lincoln-who acted as Secretary of State under Thomas Jefferson before James Madison assumed the position--as a witness, the Court held that Lincoln could refuse to disclose information that might incriminate him, and thus allowed Lincoln to decline answering what had been done with Marbury's commission. Id. at 143-44. Subsequently, in United States v. Burr, 25 F. Cas. 38, 39 (C.C.D. Va. 1807), the Court noted that "[i]t is a settled maxim of law that no man is bound to criminate himself." Id. at 39.

(183) E.g., United States v. Balsys, 524 U.S. 666, 672 (1998) (stating that the privilege "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory") (internal quotation marks omitted).

(184) E.g., Kastigar v. United States, 406 U.S. 441, 444-15 (1972). However, the privilege is inapplicable when there is a threat of prosecution from a foreign jurisdiction. Balsys, 524 U.S. at 672-74.

(185) See McCarthy v. Arndstein, 266 U.S. 34(1924).

(186) See Malloy v. Hogan, 378 U.S. 1 (1964).

(187) See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801 (1977); Reina v. United States, 364 U.S. 507(1960).

(188) E.g., Watkins v. United States, 354 U.S. 178, 195-96 (1957).

(189) E.g., In re Groban, 352 U.S. 330, 333, 336-37, 345-46 (1957).

(190) The standard subpoena is the subpoena ad testificandum, which is a court order directing a person to furnish testimony under oath. 1 Wayne R. LaFave et al., Criminal Procedure [section] 2.10(b) (3d ed. 2013). It can require the "witness to come forward to testify or to produce documentary or other tangible evidence for inspection in court, either before or during trial. Subpoenas are issued at the behest of parties, though the court has discretion to refuse to issue the subpoena if the subpoenaed witness can show a reason why he should not be called--for example, the irrelevance of his testimony, the existence of evidentiary privileges, or the constitutional right against self-incrimination. Failure to comply with a lawful subpoena is punishable as contempt." Jethro K. Lieberman, A Practical Companion to the Constitution: How the Supreme Court has Ruled on Issues from Abortion to Zoning 487-88 (1999) (emphasis added).

(191) See Lieberman, supra note 192. As a general matter, the government has the right to every person's testimony, but that right is limited in the face of a constitutional, statutory, or common-law privilege, such as the privilege against self-incrimination. E.g., Branzburg v. Hayes, 408 U.S. 665, 688 (1972).

(192) See, e.g., Cunningham, 431 U.S. 80; Unif. Sanitation Men Ass'n v. Comm'r of Sanitation, 392 U.S. 280 (1968). But see Gardner v. Broderick, 392 U.S. 273, 278-79 (1968) (holding that although police officer could not be discharged solely for his refusal to forfeit the rights guaranteed him by the Fifth Amendment, public employees may be discharged for refusing to answer potentially incriminating questions only if the questions are "specifically, directly, and narrowly relat[ed] to the performance of [their] official duties" and if they have not been required to waive their constitutional immunity precluding their answers from being used against them in subsequent criminal proceedings).

(193) See Spevack v. Klein, 385 U.S. 511 (1967) (prohibiting state from utilizing the assertion of the privilege as a basis for disbarring a lawyer who refused on self-incrimination grounds to provide information relevant to the possible violation of professional disciplinary standards).

(194) See Lefkowitz v. Turley, 414 U.S. 70 (1973).

(195) E.g., Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Court "created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause." Chavez v. Martinez, 538 U.S. 760, 770 (2003); see also Michigan v. Tucker, 417 U.S. 433, 444 (1974) (describing the "procedural safeguards" required by Miranda as "not themselves rights protected by the Constitution but ... measures to insure that the right against compulsory self-incrimination was protected" to "provide practical reinforcement for the right"); Oregon v. Elstad, 470 U.S. 298, 306 (1985) (stating that "[t]he Miranda exclusionary rule ... serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself'). "Rules designed to safeguard a constitutional right, however, do not extend the scope of the constitutional right itself...." Chavez, 538 U.S. at 772.

(196) See e.g., Kastigar v. United States, 406 U.S. 441,444-45 (1972).

(197) See, e.g., Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984).

(198) E.g., Ullmann v. United States, 350 U.S. 422,430-31 (1956).

(199) E.g., Fisher v. United States, 425 U.S. 391, 408 (1976).

(200) See Pennsylvania v. Muniz, 496 U.S. 582, 597-99 (1990) (holding that during a stop where defendant was arrested for driving under the influence of alcohol, defendant's response to police officer's question regarding the date of defendant's sixth birthday was testimonial evidence, protected by the privilege against self-incrimination, because an incorrect response revealed the contents of defendant's mind in that it supported an inference that he was impaired); Doe v. United States, 487 U.S. 201, 211-13 (1988).

(201) Muniz, 496 U.S. at 597 (stating that a compelled response is testimonial if it forces the individual to confront the "'trilemma' of truth, falsity, or silence"); see also supra notes 68-74 and accompanying text (describing the "cruel trilemma" under the oath ex officio).

(202) See, e.g., United States v. Hubbell, 530 U.S. 27, 43-44 (2000); accord United States v. Doe, 465 U.S. 605, 617 (1984); cf. Fisher, 425 U.S. at 411-13 (1976) (holding that subpoena compelling taxpayer to produce documents prepared by his accountants did not involve testimonial communication because the government already knew that the documents existed in the taxpayer's possession, and their production did not compel the taxpayer to authenticate the documents since he did not prepare them and thus was incapable of authenticating them).

(203) Schmerber v. California, 384 U.S. 757, 764 (1966); see also Hubbell, 530 U.S. at 35 (explaining that "even though the act may provide incriminating evidence," the act of exhibiting physical characteristics is not testimonial communication); United States v. Wade, 388 U.S. 218, 222 (1967) (emphasizing that exhibiting physical characteristics does not amount to disclosing knowledge). But see Schmerber, 384 U.S. at 764 (noting that certain physical tests, such as lie detector tests, which appear to be directed at obtaining physical evidence but are actually directed at eliciting testimonial evidence, constitute testimonial communication and are protected by the privilege against self-incrimination).

(204) Hubbell, 530 U.S. at 35.

(205) See United States v. Sullivan, 274 U.S. 259 (1927).

(206) See Shapiro v. United States, 335 U.S. 1 (1948).

(207) California v. Byers, 402 U.S. 424 (1971).

(208) E.g., United States v. Monia, 317 U.S. 424, 427 (1943); infra Part IV.C (discussing Salinas v. Texas, in which the Court held that the Fifth Amendment privilege did not apply because petitioner failed to expressly invoke it during his non-custodial interview with police).

(209) E.g., Garner v. United States, 424 U.S. 648, 654 (1976). The express invocation requirement gives the government notice so that it can either argue that the testimony sought is not incriminating or cure any self-incrimination through a grant of immunity. E.g., Salinas v. Texas, 133 S. Ct. 2174, 2179 (2013) (plurality opinion); see also infra notes 2157-21820 and accompanying text (discussing governmental grants of immunity).

(210) Hoffman v. United States, 341 U.S. 479, 486, (1951). Among other things, an individual's fear of self-incrimination must be based on "real and appreciable risks." Minor v. United States, 396 U.S. 87, 98 (1969).

(211) Salinas, 133 S. Ct. at 2179-80.

(212) E.g., United States v. White, 322 U.S. 694, 698 (1944).

(213) Id. at 699. There is also no privilege not to incriminate others. See Chavez v. Martinez, 538 U.S. 760, 767-68 (2003) ("It is well established that the government may compel witnesses to testify at trial or before a grand jury, on pain of contempt, so long as the witness is not the target of the criminal case in which he testifies."); Roberts v. United States, 445 U.S. 552, 558 (1980) ("Unless his silence is protected by the privilege against self-incrimination, the criminal defendant no less than any other citizen is obliged to assist the authorities.") (citation omitted).

(214) See e.g., White, 322 U.S. at 698-701 (1944) (holding that corporations or their agents cannot claim the privilege against a subpoena for corporate records on the ground that the records may incriminate them).

(215) See, e.g., United States v. Balsys, 524 U.S. 666, 692 (1998).

(216) See, e.g., id. ("[W]hen a witness's response will raise no fear of criminal penalty, there is no protection for testimonial privacy at all."). The Court has recognized that immunity statutes seek a rational accommodation between the privilege's mandates and the government's legitimate interests in obtaining testimony. See Kashgar v. United States, 406 U.S. 441, 446 (1972).

(217) Kastigar, 406 U.S. at 453; see also Balsys, 524 U.S. at 681-83 (1998) (declaring that immunity given by one governmental authority must be respected by another, and that compelled testimony under a grant of immunity in one jurisdiction, or any evidence deriving from such testimony, may not be used by prosecutors in another jurisdiction). 18 U.S.C.A. [section][section] 6002-6003 (West, Westlaw through 2014) authorize federal prosecutors to utilize "use and derivative use" immunity. See generally Note, Federal Witness Immunity Problems and Practices Under 18 U.S.C. [section][section] 6002-6003, 14 Am. Crim. L. Rev. 275 (1976).

(218) Kastigar, 406 U.S. at 453 (affirming "use and derivative use" immunity, and invalidating "transactional" immunity, "which accords full immunity from prosecution for the offense to which the compelled testimony relates," because such immunity "affords the witness considerably broader protection than does the Fifth Amendment privilege," and holding that "[t]he privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted").

(219) E.g., United States v. Washington, 431 U.S. 181, 188 (1977) ("The constitutional guarantee is only that the witness be not compelled to give self-incriminating testimony.") (emphasis added); Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) ("[T]he touchstone of the Fifth Amendment is compulsion.").

(220) Lakeside v. Oregon, 435 U.S. 333, 339 (1978); cf. Carter v. Kentucky, 450 U.S. 288, 306 (1981) (Powell, J., concurring) ("A defendant who chooses not to testify hardly can claim that he was compelled to testify.'").

(221) E.g., Washington, 431 U.S. at 187 ("Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.... Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.").

(222) See supra note 1902 and accompanying text.

(223) Washington, 431 U.S. at 188; see also Peter Westen & Stewart Mandell, To Talk, To Balk, or To Lie: The Emerging Fifth Amendment Doctrine of the "Preferred Response", 19 Am. Crim. L. Rev. 521, 535-40 (1982) (recognizing that compulsion is a continuous variable involving different kinds or levels of pressure in different settings).

(224) Miranda v. Arizona, 384 U.S. at 458, 461, 467-69, 475-77 (holding that a suspect's voluntary statements made to police during a custodial interrogation must be excluded at trial if the suspect was not first properly warned of the right to remain silent and of the consequences of failing to assert the privilege before speaking). But cf. United States v. Patane, 542 U.S. 630, 641 (2004) (plurality opinion) ("[P]olice do not violate a suspect's constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial."); United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) ("The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial.") (citation omitted).

(225) See McCormick on Evidence, supra note 82, [section] 125; infra Part IV.

(226) Michigan v. Tucker 417 U.S. 433, 439-40 (1974) (citations, alterations, and internal quotation marks omitted); accord Andresen v. Maryland, 427 U.S. 463, 470 (1976).

(227) In re Gault, 387 U.S. 1, 50 (1967); cf. California v. Byers, 402 U.S. 424, 449 (1971) (Harlan, J., concurring) ("In federal cases stemming from Fifth Amendment claims, the Court has chiefly derived its standards from consideration of ... the history and purposes of the privilege...."); Gompers v. United States, 233 U.S. 604, 610 (1914) (emphasizing that the significance of constitutional provisions "is to be gathered ... by considering their origin and the line of their growth").

(228) See infra Part 1V.A-C; see also Ullmann v. United States, 350 U.S. 422, 426 (1956) ("Our forefathers, when they wrote this provision into the Fifth Amendment of the Constitution, had in mind a lot of history which has been largely forgotten to-day.") (internal quotation marks omitted).

(229) See supra notes 21-22 and accompanying text. In Murphy v. Waterfront Commission, the Court recited a broad array of policy considerations for the privilege: "[The privilege] reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distruct [sic] of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent." 378 U.S. 52, 55 (1964) (citations and internal quotation marks omitted), abrogated by United States v. Balsys, 524 U.S. 666 (1998). But see Balsys, 524 U.S. at 683, 690-93 (criticizing Murphy's expansive recitation of the privilege's policies as an inappropriate "guide[] to the actual scope of protection under the Clause" because Murphy's broad "catalog" of policy rationales "invest[] the Clause with a more expansive promise" than the common-law rule); Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 679-98 (1968) (critiquing the Court's policy rationales in Murphy). In addition, the Court has also expressed that the privilege's purpose is to assure trustworthy evidence and to deter improper police conduct. See Oregon v. Elstad, 470 U.S. 298, 308 (1985); Tucker, 417 U.S. at 446-49.

(230) E.g., Ullmann, 350 U.S. at 426; Quinn v. United States, 349 U.S. 155, 162-63 (1955); Twinning v. New Jersey, 211 U.S. 78, 91 (1908).

(231) E.g., Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 416 (1966) ("[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction.... [T]he Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values--values reflecting the concern of our society for the right of each individual to be let alone.") (emphasis added).

(232) E.g., Miranda v. Arizona, 384 U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760-65 (1966); Tehan, 382 U.S. at 415-16; Malloy v. Hogan, 378 U.S. 1, 7 (1964). Although a full discussion of the Court's policy rationales for the privilege is beyond the scope of this Article, some of those rationales are based on the privilege's history. See supra notes 1056, 1112, 1245 and accompanying text. For more thorough treatments of the Court's policy rationales for the privilege, see Amar, supra note 31, at 65-70; 8 Wigmore on Evidence, supra note 21, [section] 2251; William J. Stuntz, Self-Incrimination and Excuse, 88 COLUM. L. Rev. 1227 (1988). See also Ronald J. Allen, Theorizing About Self-Incrimination, 30 Cardozo L. Rev. 729 (2008) (challenging efforts to justify the Self-Incrimination Clause by reference to a set of fundamental values).

(233) Ullmann, 350 U.S. at 438.

(234) Fisherv. United States, 425 U.S. 391,401 (1976).

(235) See, e.g., McKune v. Lile, 536 U.S. 24, 37 (2002) (plurality opinion) (weighing state's "vital interests in rehabilitation goals and procedures within the prison system" in upholding state program requiring inmates in sexual abuse treatment to disclose past criminal conduct); California v. Byers, 402 U.S. 424, 427 (1971) (plurality opinion) (upholding state hit-and-run statute by "balancing the public need ... [against] the individual claim to constitutional protections....").

(236) New Jersey v. Portash, 440 U.S. 450, 459 (1979); see also Berger, supra note 21, at 216 ("Fifth Amendment rights have been readily balanced away because the Court has not been inclined to meaningfully consider and evaluate what the privilege means, how various burdens affect the values it represents, and how substantial the state interests underlying the Fifth Amendment burden are.").

(237) See supra Part II.

(238) See supra notes 11, 221-27 and accompanying text; infra notes 242-48 and accompanying text.

(239) United States v. Balsys, 524 U.S. 666, 674 n.5, 683, 690 (1998) (emphasis added) (internal quotation marks omitted) (rejecting a broad "catalog" of policy rationales for the privilege that "invest[] the Clause with a more expansive promise" than the common-law rule).

(240) The Court first articulated the penalty rationale a year earlier in Malloy v. Hogan: "[T]he Fifth Amendment guarantees ... the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence." 378 U.S. 1, 8 (1964).

(241) See Griffin v. California, 380 U.S. 609, 614 (1965). Criminal defendants typically assert the privilege and forgo testifying at trial due to a fear of prior convictions impeaching their testimony, a belief that they lack credibility or likeability, or because it is a strategic decision made by their counsel. See Wilson v. United States, 149 U.S. 60, 66 (1893); Amar, supra note 31, at 203-04 n.21; Craig M. Bradley, Griffin v. California: Still Viable After All These Years, 79 Mich. L. Rev. 1290, 1293-94 (1981).

(242) See Griffin, 380 U.S. at 621 (Stewart, J., joined by White, J., dissenting) ("[T]he Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which 1 cannot readily perceive.").

(243) Id. at 614 (holding prosecutorial comments on a criminal defendant's failure to testify unconstitutional because such comments constitute a "penalty ... for exercising a constitutional privilege," and "cut[] down on the privilege by making its assertion costly").

(244) Id. at 620 (Stewart, J., joined by White, J., dissenting).

(245) Id. at 617 (Harlan, J., concurring); see also Mitchell v. United States, 526 U.S. 314, 342 (1999) (Thomas, J., dissenting) (stating that the "so-called [adverse inference] 'penalty' lacks any constitutional significance" because the defendant "is not 'compelled ... to be a witness against himself"); Andresen v. Maryland, 427 U.S. 463, 473 (1976) (upholding the government's use of the defendant's business records at trial because such evidence did not compel the defendant to speak "other than the inherent psychological pressure to respond at trial to unfavorable evidence"); Friendly, supra note 229, at 700 ("[Griffin] gave inadequate weight to the language of the amendment that testimony must be 'compelled'; presenting an unpleasant consequence is not compulsion unless the unpleasantness is so great as in effect to deprive of choice.").

(246) Griffin, 380 U.S. at 617 (Harlan, J., concurring).

(247) 450 U.S. 288, 305 (1981).

(248) Id. at 301 (emphasis added). But see Bruno v. United States, 308 U.S. 287, 294 (1939) ("[W]e have not yet attained that certitude about the human mind which would justify us in... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court that the failure of an accused to be a witness in his own cause 'shall not create any presumption against him.'").

(249) Carter, 450 U.S. at 307 (Powell, J., concurring) (explaining his concurrence in Carter because "Griffin is now the law," but stating that he would have joined Justices Stewart and White in their dissent in Griffin).

(250) Id. at 310 (Rehnquist, J., dissenting) (observing that "[t]he concept of 'burdens' and 'penalties' is such a vague one that the Court's decision allows a criminal defendant in a state proceeding virtually to take from the trial judge any control over the instructions to be given to the jury in the case being tried," and quoting Justice Harlan's concurrence in Griffin to "express the hope that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history") (internal quotation marks omitted).

(251) See, e.g., Brooks v. Tennessee, 406 U.S. 605 (1972) (applying the "penalty" theory to strike down state statute that required criminal defendants to take the stand before any other defense witnesses or else forfeit the right to testify on their own behalf); United States v. Jackson, 390 U.S. 570 (1968) (applying the "penalty" theory to strike down federal provision that allowed criminal defendants to avoid the death penalty if they did not contest their guilt); Simmons v. United States, 390 U.S. 377 (1968) (applying the "penalty" theory to prohibit a criminal defendant's testimony in support of his suppression motion from being used against him at trial on the issue of guilt); see also Berger, supra note 21, at 208 ("[T]he language used by the Court [in the 'penalty' cases] made it appear that nearly every negative consequence might be labeled a prohibited penalty.").

(252) See id. at 201-02 ("[T]here was no sign in the [Court's] opinions that the penalties were thought to ordinarily compel self-incrimination.... [The] Court did not appear to suggest that the penalties had generally compelling characteristics even in its narrative").

(253) See id. at 202-03; McCormick on Evidence, supra note 812, [section] 136, at 225-26 (discussing the Court's failure to "provide a framework for determining whether a penalty upon an exercise of the Fifth Amendment privilege is constitutionally invalid").

(254) See Berger, supra note 21, at 208; McCormick on Evidence, supra note 812, [section] 136, at 225-26.

(255) 435 U.S. 333 (1978).

(256) See id. at 336-41. In Lakeside, the Court rejected the petitioner's contention that in a trial where the defendant presents its defense through witnesses, "the defendant can reasonably hope that the jury will not notice that [the defendant] himself did not testify," and that "[i]n such circumstances, the [judge's] giving of the cautionary instruction ... is like 'waving a red flag in front of the jury.'" Id. at 339-40.

(257) See 425 U.S. 308, 318-19 (1976); cf. United States v. Robinson, 485 U.S. 25, 32 (1988) (declining to extend Griffin's "penalty" rationale to preclude a prosecutor's "fair response" to certain comments made by defense counsel).

(258) Baxter, 425 U.S. at 319 (quoting United States v. Hale, 422 U.S. 171, 176 (1975), and United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-54 (1923)) (citation, alterations, and internal quotation marks omitted); see also Bilokumsky, 263 U.S. at 153-54 ("Conduct which forms a basis for inference is evidence. Silence is often evidence of the most persuasive character."); Kirby v. Tallmadge, 160 U.S. 379, 383 (1896) ("As [defendants] had it in their power to explain the suspicious circumstances connected with the transaction, we regard their failure to do so as a proper subject of comment. All evidence ... is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.... The conduct of the party in omitting to produce that evidence in elucidation of the subject-matter in dispute, which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him, since it raises strong suspicion that such evidence, if adduced, would operate to his prejudice.") (citations and internal quotation marks omitted); Runkle v. Burnham, 153 U.S. 216, 225-26 (1894) (discussing the "doctrine that the production of weaker evidence, when stronger might have been produced, lays the producer open to the suspicion that the stronger evidence would have been to his prejudice").

(259) See, e.g., McKune v. Lile, 536 U.S. 24 (2002) (plurality opinion) (upholding adverse consequences incurred by state prisoner for refusing to make admissions required for participation in sexual abuse treatment program); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) (upholding state clemency process in which convicted inmate can either waive the privilege and testify, or face likely adverse result in clemency consideration); Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978) (upholding state plea bargaining system that withheld leniency from defendants who exercised the privilege); McGautha v. California, 402 U.S. 183, 213 (1971) (upholding state single-verdict procedure for capital cases in which the jury in a single process determined the defendant's guilt and the defendant's sentence, on the grounds that the pressure on the defendant to "become a witness against himself on the issue of guilt by the threat of sentencing him to death without having heard from him" was not so great as to violate the Self-Incrimination Clause), overruled on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941 (1972); Williams v. Florida, 399 U.S. 78, 84 (1970) (upholding state notice-of-alibi rule requiring criminal defendants to provide the state with pre-trial notice of an alibi defense and any alibi witnesses, or else waive their alibi defense at trial--even though the rule presented "a dilemma demanding a choice between complete silence [or] presenting a defense").

(260) 4 02 U.S. at 213 (emphasis added) (citation and internal quotation marks omitted), overruled on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941 (1972); see also infra note 267 (applying this approach to Federal Rule of Evidence 609).

(261) See supra Part IV.A.

(262) Chaffin v. Stynchcombe, 412 U.S. 17, 30 (1973), quoted with approval in Jenkins v. Anderson, 447 U.S. 231, 236 (1980); see also Ohler v. United States, 529 U.S. 753, 757 (2000) ("[T]he Government and the defendant in a criminal trial must make choices as the trial progresses. For example, the defendant must decide whether or not to take the stand in her own behalf. If she has an innocent or mitigating explanation for evidence that might otherwise incriminate, acquittal may be more likely if she takes the stand.").

(263) See Fed. R. Evid. 609; cf. Oregon v. Hass, 420 U.S. 714 (1975) (holding that although the privilege applies to statements obtained in violation of Miranda, such statements can be used to impeach a criminal defendant who takes the stand at trial). The Fifth Amendment also permits testifying criminal defendants to be impeached with their pre-arrest silence, Jenkins, 447 U.S. at 238, their post-arrest silence if no Miranda warnings were given, Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam), and their refusal to take the stand in a prior trial, Jenkins, 447 U.S. at 235-36 & n.2.

(264) Rock v. Arkansas, 483 U.S. 44, 52-53 (1987) ("The opportunity to testify is also a necessary corollary to the Fifth Amendment's guarantee against compelled testimony.... The Fifth Amendment's privilege against self-incrimination is fulfilled only when an accused is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will. The choice of whether to testify in one's own defense is an exercise of the constitutional privilege.") (alterations and internal quotation marks omitted).

(265) See, e.g., Ohler, 529 U.S. at 759-60 (observing that a defendant's prior conviction may be elicited during cross-examination by the government or during direct examination by the defendant). In Ohler, the Court declared:

"[Rule 609] does not prevent [the defendant] from taking the stand and presenting any admissible testimony which she chooses. She is of course subject to cross-examination and subject to impeachment by the use of a prior conviction. In a sense, the use of these tactics by the Government may deter a defendant from taking the stand. But, as we said in McGautha v. California'. 'It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination.... It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like.... Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.'"

529 U.S. at 759-60 (internal citation omitted); see also Luce v. United States, 469 U.S. 38, 41 (1984) ("Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.").

(266) See McCormick on Evidence, supra note 812, [section] 136, at 224 ("Even the privilege of an accused in a criminal case does not mean that an accused is constitutionally entitled to be completely free of any penalty or burden in that criminal case itself from the accused's reliance on the privilege."); cf. discussion supra Part II.H, II.I (discussing why, at common law and after the Bill of Rights' ratification, criminal defendants in the United States were not entitled to suffer no consequences for their refusal to speak).

(267) See McCormick on Evidence, supra note 812, [section] 136, at 224; cf. supra notes 243 and accompanying text (discussing Griffin's penalty doctrine).

(268) E.g., Mitchell v. United States, 526 U.S. 314, 335 (1999) (Scalia, J, joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting).

(269) See, e.g., People v. Modesto, 398 P.2d 753, 763 (Cal. 1965) (Traynor, C.J.) ("Although [adverse] comments might encourage some defendants to testify to avoid the inferences that may reasonably be drawn from their failure to do so ... this encouragement does not amount to the compulsion to testify condemned by the Fifth Amendment.") (footnote and citations omitted), overruled by Griffin v. California, 380 U.S. 609 (1965); Griffin, 380 U.S. at 620 (Stewart, J., joined by White, J., dissenting) (asserting that the Griffin majority had stretched the concept of compulsion beyond all reasonable bounds); supra notes 24-25, 244-2467, 249-250 and accompanying text. In England, courts and juries may draw adverse inferences from a criminal defendant's refusal to testify at trial. See Criminal Justice and Public Order Act, 1994, c. 33, [section] 35 (Eng.). For a comparative study of the English law, see Gordon Van Kessel, European Perspectives on the Accused as a Source of Testimonial Evidence, 100 W. Va. L. Rev. 799 (1998). Furthermore, the European Court of Human Rights has rejected contentions that adverse inferences from silence necessarily constitute "improper compulsion." Murray v. United Kingdom, 22 Eur. Ct. H.R. 29, 60-64 (1996); see also Mark Berger, Europeanizing Self-Incrimination: The Right to Remain Silent in the European Court of Human Rights, 12 COLUM. J. EUR. L. 339, 373-80 (2006) (discussing Great Britain's permissive adverse inference statute and the European Court of Human Rights' rulings on adverse inferences).

(270) "I am no longer sure that the Fifth Amendment concept, in its present form and as presently applied and interpreted, has all the validity attributed to it." Sue Vander Hook. & Yale Kamisar, Miranda v. Arizona: An Individual's Rights When Under Arrest 106 (2013) (statement of Chief Justice Warren E. Burger) (internal quotation marks omitted).

(271) See supra notes 27 and accompanying text. Compare, e.g., United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) ("The government may comment on a defendant's silence if it occurred prior to the time that he is arrested and given his Miranda warnings."), with United States v. Moore, 104 F.3d 377, 389 (D.C. Cir. 1997) ("[T]he law is plain that the prosecution cannot, consistent with the Constitution, use a defendant's silence against him as evidence of his guilt."), and Weitzel v. State, 384 Md. 451, 461 (2004) ("[P]re-arrest silence in police presence is not admissible as substantive evidence of guilt under Maryland evidence law.").

(272) See, e.g., United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987).

(273) 133 S. Ct. 2174, 2178 (2013) (plurality opinion).

(274) Id.

(275) Id.

(276) Id.

(277) Id.

(278) Salinas, 133 S. Ct. at 2178.

(279) Id.

(280) Id.

(281) Id. at 2179; see supra notes 210-13 (discussing the express invocation requirement). Although in Quinn v. United States, 349 U.S. 155, 164 (1955), the Supreme Court had declared that "no ritualistic formula is necessary in order to invoke the privilege," the Salinas plurality held that a defendant must speak to claim the privilege and likely do so with exactly the type of "ritualistic formula" that the Court previously rejected in Quinn. See Salinas, 133 S. Ct. at 2186 (plurality opinion). For an examination of what exactly constitutes an assertion of the privilege, see Marcy Strauss, The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent Under Miranda, 17 Wm. & Mary Bill Rts. J. 773, 774 (2009).

(282) Salinas, 133 S. Ct. at 2180 (plurality opinion). The Salinas plurality did not address whether Salinas's assertion of the privilege during his non-custodial interview would have prohibited the prosecution's use of his interview silence. See id. at 2177-84.

(283) Id. at 2184 (Thomas, J., joined by Scalia, J., concurring) (emphasis added).

(284) Id. at 2184-85 (Thomas, J., joined by Scalia, J., concurring).

(285) See Griffin v. California, 380 U.S. 609, 611 n.3 (1965); supra note 1779 and accompanying text.

(286) Mitchell v. United States, 526 U.S. 314, 330, 331-32 (1999).

(287) Id. at 332, 336 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J., dissenting) (observing that "Griffin was a wrong turn--which is not cause enough to overrule it, but is cause enough to resist its extension").

(288) See Salinas, 133 S. Ct. at 2184-85 (Thomas, J., joined by Scalia, J., concurring).

(289) Id. at 2186 (Breyer, J., joined by Ginsburg, J., Sotomayor, J., and Kagan, J., dissenting).

(290) See 18 U.S.C.A. [section] 1001(a)(2) (West, Westlaw through 2014) (providing that a person who makes "any materially false, fictitious, or fraudulent statement or representation" to a federal officer is subject to a fine and imprisonment up to five years); Brogan v. United States, 522 U.S. 398, 404 (1998) (holding that [section] 1001 validly imposes a criminal penalty on mere denial of wrongdoing and upholding a defendant's false statement conviction under the statute on the grounds that the Fifth Amendment protects silence without penalty, but does not protect false statements); Christopher Hall, What Constitutes Obstructing or Resisting Officer, in Absence of Actual Force, 66 A.L.R. 5th 397, [section] 8[a] (1999) (surveying cases where courts convicted defendants who gave false information to officers for obstructing or resisting an officer's performance of duties); see also, e.g., N.Y. Penal Law [section] 205.50 (McKinney, Westlaw through 2014) (criminalizing as "criminal assistance" any person who has an "intent to prevent, hinder or delay the discovery or apprehension of ... a person who he knows or believes has committed a crime" and, by means of deception, prevents "anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him").

(291) See supra notes 687-74,142, 203 and accompanying text.

(292) Cf. supra Parts II, IV.

(293) McGautha v. California, 402 U.S. 183, 213 (1971), overruled on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941 (1972).

(294) Cf. supra Part IV.A (discussing the Court's inconsistent policy rationales for the privilege).

(295) See Griffin v. California, 380 U.S. 609 (1965).

(296) See supra Part II.

(297) See supra Part II.

(298) See supra notes 11,219, 242-48 and accompanying text.

(299) See supra Parts I, IV.B.

(300) See supra Parts 1, IV.

(301) See supra Parts IV, V.

(302) See supra Part V.

(303) United States v. Robinson, 485 U.S. 25, 45 (1988) (Marshall, J., joined by Brennan, J., dissenting).

(304) See supra Part II.

(305) Amar, supra note 31, at 88.

Zaur D. Gajiev, J.D. Candidate, 2015, Pepperdine University School of Law; B.A. in Political Science and Psychology, 2010, C.U.N.Y. Hunter College. Special thanks to the members of the Faulkner Law Review for helping me polish this final product. For all their love and support, I would like to thank my parents, Elchin and Maya, my brother El, and Kristina.
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Title Annotation:Continuation of II. An Examination of the History Behind the Privilege Against Self-Incrimination H. The Common Law Privilege Becomes a Constitutional Right through VI. Conclusion, with footnotes, p. 256-281
Author:Gajiev, Zaur D.
Publication:Faulkner Law Review
Date:Mar 22, 2015
Words:19430
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