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

     A. The Deification of a Feudal Document
     B. Development of Two Rival Systems of Criminal Procedure
     C. The English Crown's Interest in Inquisitorial Procedure
     D. The Tudor Dynasty and the English Reformation
     E. Opposition Against Inquisitorial Procedure Intensifies
     F. The Stuart Dynasty and the End of the Oath Ex Officio
     G. The Privilege Migrates to Colonial America; Its Use in
        Criminal Procedure
     H. The Common Law Privilege Becomes a Constitutional
     I. Criminal Procedure in the Newly-Established United
     A. The Supreme Court's Inconsistent Policy Rationales
     B. Trading the Compulsion Analysis for the "Penalty"
     C. Instability in the Lower Courts Regarding Pre-Arrest Silence


Early in Los Angeles on the morning of December 3, 1961, a man with multiple prior felony convictions named Eddie Griffin emerged from a large trash box in an alleyway, buttoned up his trousers, and walked away. (1) Inside the trash box was a young girl named Essie Mae Hodson--savagely beaten, bleeding, and barely conscious. (2) When police discovered Essie Mae's body, they took her to a nearby hospital, where the doctors treated her for a fractured skull, bruises on her scalp, eyes, forehead, and lips, and multiple abrasions on her ankles, hips, and back. (3) Despite the doctors' efforts to save her, Essie Mae died from her injuries the following afternoon. (4)

Authorities arrested Eddie Griffin in Mexicali, Mexico and charged him in California for Essie Mae's murder. (5) Upon his arrest, Griffin told police that on the morning of the incident, he was inside an apartment that Essie Mae shared with her boyfriend, that Essie Mae suffered her injuries from a struggle between her boyfriend and Griffin, and that after the struggle, Essie Mae--even though she was badly injured--took Griffin to the trash box behind the apartment building and voluntarily engaged in intercourse with him. (6) But Griffin refused to testify at trial. (7) During trial, the prosecutor commented on Griffin's failure to testify: "The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.... Essie Mae is dead, she can't tell you her side of the story. The defendant won't." (8)

Griffin was convicted of Essie Mae's murder in the first degree. (9) The California Supreme Court affirmed the conviction, and subsequently the U.S. Supreme Court granted certiorari to determine whether the prosecutor's "comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment," (10) which provides that no person "shall be compelled in any criminal case to be a witness against himself." (11) In a decision entrenched in controversy to this day, (12) the Griffin majority reversed Eddie Griffin's conviction, holding that the Self-Incrimination Clause prohibited prosecutorial comments on a defendant's refusal to testify at trial. (13)

The majority failed, however, to evaluate whether the prosecutor's comment actually exerted a compelling pressure on Griffin to testify at his trial. (14) Instead, the Justices opined that the comment was unconstitutional because it imposed a "penalty" upon Griffin's exercise of the privilege against self-incrimination. (15) Furthermore, the majority failed to analyze whether the language or history of the Self-Incrimination Clause supported its decision. (16) Rather, the majority fashioned a new evidentiary rule prohibiting comments to jurors regarding the drawing of a natural inference from silence. (17,) As a result, the Griffin majority created a new constitutional right without any basis in the Constitution itself. (18)

It is true that the U.S. Constitution was intended to endure and that the Framers envisioned some degree of flexibility in its interpretation. (19,) However, without properly considering its language and history, the Constitution becomes, as Thomas Jefferson said, "a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please." (20) This risk is magnified when the judiciary fails to articulate a consistent rationale underlying a constitutional right, as seen with the Self-Incrimination Clause, where at least a dozen justifications have been suggested for the privilege. (21) Indeed, Justice Arthur Goldberg observed that the privilege is "regarded as so fundamental a part of our constitutional fabric, despite the fact that the law and the lawyers have never made up their minds just what it is supposed to do or just whom it is supposed to protect." (22)

As a result of the Court's failure to articulate a consistent rationale underlying the privilege, lower courts are deprived of a framework with which to approach self-incrimination problems. (23) Additionally, the Griffin majority's expansion of the privilege's scope has been met with robust opposition, (24) especially from within the Court itself. (25) Furthermore, there is an open question regarding whether the Griffin rule extends to prohibit evidence of a criminal defendant's pre-arrest silence, (26) which has caused conflicting jurisdictional rules on the issue among lower courts. (27) As a result, verdicts in criminal trials involving evidence of pre-arrest silence vary significantly throughout the United States, as the admission of such evidence often makes the difference between conviction and acquittal. (28)

In 2013, the Supreme Court granted certiorari in Salinas v. Texas to resolve the circuit split on the use of pre-arrest silence. (29) However, because the petitioner in Salinas did not expressly invoke the privilege against self-incrimination during his pre-arrest interview with police, the Court declined to reach the issue of whether the Self-Incrimination Clause prohibited the prosecutor from later using the petitioner's pre-arrest silence as evidence of his guilt. (30) To be sure, the Court's equivocal approach to the principles underlying the privilege, the unresolved issue of whether the privilege bars the use of pre-arrest silence as substantive evidence of guilt, and the resultant discord among the lower courts regarding pre-arrest silence have detrimentally impacted criminal procedure in the United States.

Although the Self-Incrimination Clause has been characterized as "an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights," (31) it is nonetheless possible to clarify precisely what the Clause protects and how it constitutionally operates. (32) This Article maintains that the Fifth Amendment's text and history demonstrate that the compulsion analysis is the proper constitutional inquiry for addressing self-incrimination issues. (33) The Court's deviation from this analysis in Griffin and its progeny has distorted the privilege's constitutional scope, causing much turmoil in self-incrimination doctrine. (34) However, a consistent return to the compulsion analysis will remedy the confusion regarding pre-arrest silence and will provide a much-needed framework for resolving self-incrimination problems in the future. (35)

Part II explores the rich and dramatic development of the privilege against self-incrimination, and how the privilege's history has influenced American jurisprudence. It traces the privilege's roots to the impassioned resistance against the English prerogative and ecclesiastical courts' extensive use of a powerful oath that compelled the criminal confessions of many political and religious dissidents. Part III describes the modern scope of the privilege in the United States. Part IV analyzes the Supreme Court's deviation from the compulsion analysis in Griffin and how that deviation has contributed to difficulties in the privilege's interpretation today, including the unresolved split regarding prosecutorial comments on pre-arrest silence. Part V considers the future of the Griffin rule, illustrates how the compulsion analysis applies to pre-arrest silence, and demonstrates how this approach safeguards the liberties undergirding the privilege and remedies the turmoil surrounding its interpretation. Part VI concludes the analysis.


The importance of examining history to understand the foundations that drive the privilege against self-incrimination cannot be overstated. Justice Felix Frankfurter once observed that the privilege against self-incrimination is a "specific provision of which it is peculiarly true that a page of history is worth a volume of logic." (36) Similarly, Chief Justice Earl Warren professed that the privilege is "a right that was hardearned by our forefathers. The reasons for its inclusion in the Constitution--and the necessities for its preservation--are to be found in the lessons of history." (37) Historians, however, have disputed the privilege's origin.

The privilege's history and evolution were originally traced by John Henry Wigmore, one of the most prominent legal scholars in U.S. history. (38) Building upon Wigmore's work, Professor Leonard Levy has led the traditional view of the privilege's history, which places its primary development in England during the thirteenth to seventeenth centuries, when the English common law mounted an assault against the prerogative and ecclesiastical courts' inquisitorial practices. (39) Professor Levy posits that the privilege was motivated by conscience and fairness in criminal proceedings, and developed in the context of the great political struggle to establish individual liberties against arbitrary royal prerogative. (40)

Recent scholarship, however, disputes that the privilege against self-incrimination emerged from the English common law (41) One view contends that the privilege was originally recognized in the thirteenth century in the European ius commune--the merger of Roman and canon law--and subsequently developed in continental Europe's ecclesiastical courts. (42) These historians maintain that by the time the privilege was recognized in the English common law, it had already been fully developed in the European ius commune. (43) Nonetheless, despite their assertions that the ius commune played a greater role in the privilege's development, these historians concede that the modern-day privilege was in fact attributed to the English common law's later adoption and expansion of it. (44)

A third viewpoint contends that the privilege against self-incrimination did not fully develop until the late eighteenth century, when changes in criminal procedure regarding the use of defense counsel truly allowed defendants to assert the privilege. (45) Prior to the use of defense counsel, criminal defendants refusing to respond to incriminating evidence forfeited any defenses they had because if they "did not or could not defend themselves, no one would do it for them." (46) This view maintains that in order for the privilege to function, a criminal defendant must be in a position to defend by proxy. (47) Thus, it asserts that the privilege developed only when defendants were finally allowed to be represented at trial. (48)

This Article does not aim to celebrate one view over the other, but instead reconciles the aforementioned standpoints to provide a comprehensible and reasonable account of the privilege's origin and development from the thirteenth century on.

The Deification of a Feudal Document

On the plains of Runnymede on June 15, 1215, King John of England affixed his seal to a feudal agreement that would become one of the most important legal documents in the history of democracy--Magna Carta. (49) Magna Carta greatly influenced the development of English common law, as well as the constitutional law of England and beyond. (50) Specifically, Chapter Twenty-Nine of Magna Carta provided that no free person could be deprived of liberty except through the "law of the land." (51) The provision embodied the principle that no one, not even the King, was above the law--a principle that resonates to this day. (52)

More than five centuries later across the Atlantic Ocean, thirteen English colonies declared that they were entitled to the liberties guaranteed in Magna Carta as the document served to inspire and justify the American Revolution. (53) The colonists later embedded Magna Carta's liberties into the laws of their newly independent states, (54) into the U.S. Constitution, (55) and into the Bill of Rights. (56) Consequently, Magna Carta transformed from a "feudal aristocratic document to an embodiment of common-law liberties" that are recognized to this day. (57)

Development of Two Rival Systems of Criminal Procedure

After Magna Carta was signed in 1215, the English common law courts developed an adversarial (58) system of criminal procedure comparable to United States procedure today. (59) Once a criminal defendant was indicted, a justice of the peace conducted a preliminary examination of the defendant prior to trial. (60) Although common law criminal procedure prohibited defendants from giving sworn testimony, their unsworn statements were admitted. (61) Moreover, the judge was generally passive during trial, and the court's role was solely to enforce the rules of criminal procedure. (62)

Ironically in the same year that Magna Carta was signed, the head of the Roman Catholic Church, Pope Innocent III, introduced an inquisitorial system of criminal procedure for use by all European ecclesiastical courts in prosecuting heresy. (63) Compared to the English common law's adversarial system, inquisitorial procedure was cruel and arbitrary, with every step shrouded in secrecy. (64) An ecclesiastical judge had virtually limitless authority to imprison suspects and try them in a proceeding in which the judge was accuser, prosecutor, judge, and jury. (65) The court, however, never informed the suspects of the charges and evidence against them, or of the identities of their true accusers. (66)

Furthermore, extracting confessions became the crux of inquisitorial procedure. (67) At the outset of every proceeding, defendants were required to swear an oath called the oath ex officio compelling them to answer all questions truthfully. (68) Refusal to answer questions after swearing the oath ex officio or refusal to take the oath both convicted the defendant of contempt. (69) Answering questions falsely under the oath ex officio convicted the defendant of perjury. (70) And because defendants were not informed of the charges and evidence against them, any truthful answers under the oath put them at risk of making statements that the ecclesiastical judges would regard as confessions. (71) The oath ex officio forced defendants into what became known as the "cruel trilemma"--or the truth-falsity-silence trilemma--a predicament of being compelled to choose between contempt, perjury, and self-incrimination. (72) As a result, once defendants were placed under the oath ex officio, their convictions were almost guaranteed. (73) Consequently, the oath ex officio became known as a form of spiritual torture and became the inquisitorial system's most odious feature. (74)

The English Crown's Interest in Inquisitorial Procedure

The King's Council or Privy Council was the most powerful political institution in England and was responsible for advising the King and administering the Crown's business. (75) It was comprised of "the greatest officers of state, the most powerful nobles and bishops, officers of the King's household, and the foremost lawyers and judges." (76) The Council prosecuted crimes against the Crown in its own courts, which maintained broad, discretionary jurisdiction and a substantial amount of judicial work. (77) By the fourteenth century, the Council began to take notice of the ecclesiastical courts' inquisitorial methods, particularly their use of the oath ex officio to secure convictions and compel even the most powerful nobles to submit to official questioning. (78) The Crown recognized the advantages of employing inquisitorial procedure in its own courts. (79)

In 1487, King Henry VII invoked the royal prerogative (80) and created the Court of Star Chamber to become the judicial arm of the Council, empowering it with the authority to use inquisitorial procedure. (81) The royal prerogative was not bound by the common law; thus, courts created under it lacked the safeguards that common law courts provided for criminal defendants. (82) In prosecuting defendants in the prerogative courts, the Council could "use any procedure it wished and dispense with its usual procedure when it wished." (83) Though Parliament condemned the Council's use of inquisitorial procedure as violating Magna Carta and the common law--which required formal indictments and prohibited criminal proceedings upon secret accusations--these methods simply worked too efficiently for the Crown to give up. (84)

The Tudor Dynasty (85) and the English Reformation

The English Reformation (86) began in 1534 when King Henry VIII broke with the Roman Catholic Church and proclaimed himself the supreme head of the newly-established Church of England. (87) Henry VIII and his son, King Edward IV, persecuted those who continued to support the Roman Catholic Church. (88) When Mary I, known as "Bloody Mary," ascended to the throne in 1553, she returned the Church of England to Roman Catholicism (89) and instituted a reign of terror to enforce the Catholic faith against all religious non-conformists. (90) Mary invoked the royal prerogative and created the Court of High Commission to become the ecclesiastical arm of the Council, empowering it with the authority to use inquisitorial procedure. (91) The High Commission used the oath ex officio to prosecute, convict, and execute many accused heretics--some of whom were executed merely for refusing the oath. (92)

After Mary, Elizabeth I took the throne in 1558 and established the Anglican Church as the official Church of England. (93) Soon after, a group of English Protestants called Puritans criticized Anglicanism and threatened Elizabeth's sovereignty. (94) In response, Elizabeth directed the High Commission to prosecute all Puritans and non-conformists. (95) The High Commission under Queen Elizabeth possessed unprecedented ecclesiastical jurisdiction and employed more stringent inquisitorial methods. (96) The Courts of High Commission and Star Chamber worked in tandem to prosecute all religious and political opposition to the Crown; those who refused the oath ex officio before the High Commission languished in jail for contempt, while those who refused the oath before the Star Chamber were convicted of the crime charged. (97)

Opposition Against Inquisitorial Procedure Intensifies

In the sixteenth century, increasing numbers of defendants before the High Commission and England's ecclesiastical courts refused to take the oath ex officio, (98) Additionally, the English common law courts opposed the ecclesiastical courts' growing jurisdictional authority. (99) By the early seventeenth century, more and more people declared "that to coerce a man to testify against himself, with or without oath, was simply unjust--an outrage on human dignity and a violation of the very instinct of self-preservation." (100) Those who challenged the oath ex officio asserted two primary arguments.

First, they cited the Latin maxim, nemo tenetur seipsum prodere (or nemo tenetur seipsum accusare), meaning "no one is bound to accuse himself." (101) The maxim became a rallying cry for persecuted Puritans and non-conformists, and by the end of the sixteenth century became renowned in resisting inquisitorial methods. (102) More importantly, the nemo tenetur maxim was the precursor to the modern-day privilege against self-incrimination and influenced the common law of the United States, (103) the cognate provisions of state constitutions, (104) and the Fifth Amendment to the U.S. Constitution. (105)

Second, those who resisted inquisitorial procedure contended that it violated Magna Carta's "law of the land" provision, which guaranteed every person "an indictment by grand jury and trial by jury in a common-law court by common-law procedure." (106) Furthermore, they claimed that inquisitorial procedure violated Magna Carta's Chapter Twenty-Eight, which prohibited bailiffs from placing defendants under oath without producing the witnesses against them. (107) Although their contentions that Magna Carta specifically supported a right against self-incrimination may have been historically unsound, (108) objectors nonetheless cited Magna Carta as the source of liberty on the subject. (109)

The Stuart Dynasty (110) and the End of the Oath Ex Officio

After Queen Elizabeth's death, the initial monarchs of the new Stuart dynasty used the prerogative courts to commit such notorious abuses that over three centuries later the U.S. Supreme Court cited them as the motivating force behind the privilege against self-incrimination embodied in the Fifth Amendment. (111) In 1603, King James I ascended to the throne and strengthened the High Commission's crusade against Roman Catholics, Puritans, and other non-conformists. (112) Nonetheless, defendants before the Commission continued to refuse the oath ex officio and claim the nemo tenetur maxim and Magna Carta. (113) During this time, the English common law courts mounted their own assault against inquisitorial procedures." (114) Common law judges increasingly issued writs of prohibition against England's ecclesiastical courts barring them from hearing common law matters, (115) and also asserted that the common law must govern in all courts created by royal prerogative such as High Commission and Star Chamber. (116)

In 1625, James's son Charles I took the throne, dissolved the Parliament, and used the Courts of High Commission and Star Chamber (117) in a merciless campaign against all religious and political dissidents. (118) He proclaimed that those who refused the oath ex officio were to be held pro confesso--as having confessed their own guilt--and legally convicted. (119) Moreover, because only the Court of Star Chamber could punish by torture and mutilation, (120) the High Commission transferred its convicted victims to the Star Chamber so they could suffer the "peculiarly gory punishments" that the High Commission could not inflict. (121) As countless people watched the Star Chamber's gruesome public punishments, outrage against both prerogative courts intensified. (122)

Then, in 1637, the Crown arrested a young Puritan named John Lilburne, a twenty-three-year-old libertarian who fearlessly opposed the Stuart monarchy, and who eventually focused all of England "on the injustice of forcing a man to be the means of his own undoing." (123) More than three centuries later, the U.S. Supreme Court cited the Crown's proceedings against Lilburne as being instrumental in developing the modern-day privilege against self-incrimination. (124) The Crown initially arrested Lilburne for smuggling seditious books into England in violation of a Star Chamber decree. (125) When the prosecutor interrogated Lilburne prior to his trial, Lilburne refused to answer any questions unrelated to his criminal charge. (126) He declared that unless he could confront his accusers regarding those unrelated matters, under Magna Carta he had the liberty to refuse to speak "for fear that with my answer I may do myself hurt." (127)

When Lilburne appeared before the Star Chamber for trial, he refused to take the oath ex officio, arguing against its illegality and immorality. (128) Instead of finding Lilburne pro confesso on the charge, however, the Court of Star Chamber convicted him of contempt and sentenced him to a harsh fine, savage lashing, pillorying, and imprisonment. (129) As officers tied Lilburne to the back of a cart in public and whipped him nearly to death, Lilburne launched into an impassioned speech describing the injustice that he suffered for refusing to take the oath ex officio, which captivated many onlookers made him extremely popular almost overnight. (130) While imprisoned, Lilburne also smuggled out pamphlets that detailed his suffering, which were published and circulated widely across England. (131)

Soon after, King Charles I, cash-strapped and on the brink of civil war, accepted the formation of a new Long Parliament, which immediately denounced the Crown's oath ex officio practice and freed Lilburne and others like him. (132) In 1641, the Long Parliament wholly abolished the Courts of Star Chamber and High Commission, and declared that only common law procedure governed matters of life, liberty, and property. (133) After the subsequent English Civil War and the restoration of the monarchy under King Charles II in 1660, English common law courts recognized the privilege against self-incrimination in both criminal (134) and civil cases, and extended it to protect witnesses as well. (135) By the end of King Charles II's reign in 1685, the privilege against self-incrimination was a respected rule in English law. (136)

The Privilege Migrates to Colonial America; Its Use in Criminal Procedure

During the advent of the New World, England granted its American colonies charters that guaranteed them all of the liberties that English law provided. (137) As the colonies' legal systems developed and their judges and lawyers looked more and more to English law for guidance, the privilege against self-incrimination became entrenched in American jurisprudence. (138) The privilege at common law was a privilege against compulsory self-incrimination, (139) "thought to ban only testimony forced by compulsory oath or physical torture, not voluntary or unsworn testimony." (140)

Colonial justices of the peace routinely examined criminal suspects before trial in attempts to coerce their confessions, but never conducted such examinations under oath. (141) Though unsworn, a suspect's statements during the pre-trial examination could later be used against the suspect at trial. (142) Furthermore, although justices of the peace recognized the privilege against self-incrimination during these proceedings, they typically informed juries of a suspect's refusal to speak. (143) To be sure, the common law privilege did not afford criminal suspects the right to suffer no consequences for their refusal to speak.

During the eighteenth century, common law courts established a procedural rule barring criminal defendants from offering sworn testimony at trial on the ground that "[a]nyone having a personal stake in the outcome of a trial was thought to be so irresistibly tempted to perjury that his testimony was regarded as untrustworthy." (144) Accordingly, criminal defendants were prohibited from testifying under oath because they had the highest personal stake in the outcomes of the proceedings against them. (145) Despite their testimonial disqualification, defendants actively participated in their trials, replying to the prosecutions' arguments and answering the courts' questions. (146) Particularly, for serious crimes such as felonies and treason, defendants were not allowed counsel, and so their most fundamental defense was to respond to the charges against them. (147) As courts granted criminal defendants rights to counsel and to call witnesses, defendants spoke less and less during the proceedings against them. (148)

The Common Law Privilege Becomes a Constitutional Right

On June 12, 1776, the Virginia Constitutional Convention adopted one of the most influential documents in American history called the Virginia Declaration of Rights. (149) Originally drafted by George Mason, the Declaration proclaimed the inherent rights of all individuals. (150) Particularly, Section (8) of the Declaration enumerated the rights of criminal defendants at trial and provided that no person can be "compelled to give evidence against himself." (151) The Declaration became a model for the constitutions of the newly-independent states; by the end of the American Revolution, eight states followed Virginia and incorporated the privilege against self-incrimination in their own constitutions. (152)

More importantly, the Virginia Declaration influenced the Bill of Rights. (153) After the Revolution, the American public, having recently suffered the English government's oppression, was particularly apprehensive of the newly-formed U.S. national government. (154) In response, during the First Congress in 1789, Representative James Madison submitted a proposal of constitutional amendments to "prove that the new national government was a friend of liberty." (155) One of Madison's proposed amendments read:

No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation. (156)
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Title Annotation:I. Introduction into II. An Examination of the History Behind the Privilege Against Self-Incrimination H. The Common Law Privilege Becomes a Constitutional Right, p. 231-256
Author:Gajiev, Zaur D.
Publication:Faulkner Law Review
Date:Mar 22, 2015
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