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The Privilege against Self-Incrimination: Its Origins and Development

By R. H. Helmholz, et al.

The Privilege against Self-Incrimination.gifThe Privilege against Self-Incrimination argues that current interpretation has stretched the privilege beyond historical precedent.

310 pages
University of Chicago Press (1997)

Reviewed by: Eric Howard
In seven chapters by six authors, most of whom are professors of law, The Privilege against Self-Incrimination takes the reader from the Middle Ages through the seventeenth century, the colonial period, and into the twentieth century. The authors do not argue that there should be a return to some hypothetical "original understanding" of the privilege against self-incrimination, but they do aim to debunk the idea that the Fifth Amendment privilege is a hallowed ideal for which only the broadest interpretation is the fairest.

The privilege against self-incrimination began its growth phase in the nineteenth century, when the representation of those accused of crimes became more common. Since then, defense attorneys have made significant gains for their clients in the realm of Fifth Amendment privilege. As these gains have been made, conservatives and liberals have argued about what the privilege should and does encompass. The authors point out that throughout the history of common law the basic tenet of the privilege has been that the accused is not to be obliged to confess, not that the accused does not have to testify at all.

The Privilege against Self-Incrimination recounts how the privilege has been interpreted during its evolution, argues that it has expanded well beyond precedent, and suggests that the modern understanding of the privilege—that it includes the right not to offer an affirmative defense—does little to preserve the presumption of innocence of the accused or to provide the fullest account of the issues at trial to the trier of fact.

Eric Howard is associate editor of Los Angeles Lawyer.