Self-incrimination is the act of accusing one's self of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: Directly by means of interrogation where information of a self-incriminatory nature is disclosed. Indirecectly when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person. In countries deriving their laws as an extension of the history of the Common Law of England, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination. However, this body of law both flows and ebbs according to the times in which those protections are resorted to.
Brief history
Overview
The history of legal protections against self-incrimination were defined in the high-profile and highly controversial United States of America Supreme Court Opinion of Miranda v. Arizona in 1966:
U.S. Supreme Court: MIRANDA v. ARIZONA, 384 U.S. 436 (1966) CERTIORARI TO THE SUPREME COURT OF ARIZONA. No. 759. Argued February 28 - March 1, 1966. Decided June 13, 1966. MR. CHIEF JUSTICE WARREN delivered the opinion of the Court:
"... We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. 27 Perhaps [384 U.S. 436, 459] the critical historical event shedding light on its 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. The Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). 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." Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944). 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. 28 These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights. 29 Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that "illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886). The privilege was elevated to constitutional status and has always been "as broad as the mischief [384 U.S. 436, 460] against which it seeks to guard." Counselman v. Hitchcock, 142 U.S. 547, 562 (1892). We cannot depart from this noble heritage. ..."
Origins of the Fifth Amendment
The origins of the Fifth Amendment to the United States Constitution were the subject of a Pulitzer prize winning book originally published in 1969 (and subsequently reissued), called Origins of the Fifth Amendment by author Leonard W. Levy. The following description was written by the publisher and published as part of the book , before the terroristic events of 2001, and before passage of the Patriot Act:
... This book tells the remarkable story of perhaps the most essential safeguard of personal liberty - the right against self-incrimination. Today, when "taking the Fifth" is too often seen as little more than a legal loophole and when some argue that the fight against crime may well require restrictions on this cornerstone right of a free society. ... (the author) traces the history of the Fifth Amendment to its origins in English common law ... (to) the ideas, issues, beliefs, people, events and most importantly, the intentions of those who struggled to protect citizens against arbitrary rule.
Gradual removal of protection
A Loss of Liberties, subtitled Britain's war on terror, was the subject of an article on page 47 of the October 31, 1988, edition of Newsweek magazine. A color picture captioned: Off the air: Sinn Fein leader Adams accompanied the article which begins with these words:
... In 1649 John Lilburne fought a charge of high treason in a London court by claiming that "the good old laws of England" permitted his silence on questions "against or concerning myself." He was acquitted, and the protection against self-incrimination became part of England's cherished common law and one of the oldest civil liberties in the Anglo-American legal tradition. Last week the Lilburne principle fell victim to London's stepped-up was against Irish Republican Army terrorism. The British government proposed a law that would allow police and courts in Northern Ireland to draw negative conclusions if a suspect refuses to answer questions. Coming only a day after the British government banned broadcast interviews with members of the Sinn Fein Party ... London made plain its willingness to sacrifice established freedoms in the name of internal security. ...
As a result of the terrorist plane attacks on the United States of America on September 11, 2001, the protection against self-incrimination not only disappeared in Northern Ireland, but subsequently came under attack in the United Kingdom and finally in the United States of America, all in the name of the ambigiuous and Orwellian War against Terror. Defenders of police powers to interrogate and investigate have countered by claiming that the world has entered into a new age post-9/11 where all means must be used to defend citizens against enemies who do not wage conventional warfare.
Footnote on spelling
There is a historical variation in the spelling of the Lilburne name, sometimes minus the last letter.
Legal definitions of Self-incrimination
- Barron's Law Dictionary (USA):
SELF-INCRIMINATION, PRIVILEGE AGAINST the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself which will subject him or her to an incrimination. This right under the Fifth Amendment (often called simply PLEADING THE FIFTH) is now applicable to the states through the due process clause of the Fourteenth Amendment, 378 U.S. 1,8, and is applicable in any situation, civil or criminal where the state attempts to compel incriminating testimony. (There are many caveats following this section.)
- Black's Law Dictionary (USA):
SELF-INCRIMINATION: Acts or declarations either as testimony at trial or prior to trial by which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as provisions in many state constitutions and laws, prohibit the government from requiring a person to be a witness against himself involuntarily or to furnish evidence against himself. (There are links to other related subjects: Compulsory self-incrimination; Link-in-chain; Privilege against self-incrimination.)
References
External links
Text of Miranda v. Arizona
