THE PRIVILEGE AGAINST SELF-INCRIMINATION: ITS ORIGINS AND DEVELOPMENT by R. H. Helmholz, Charles M. Gray, John H. Langbein, Eben Moglen, Henry E. Smith, Albert W. Alschuler. Chicago: University of Chicago Press, 1997. 310 pages. $29.95 cloth. ISBN 0-226-32660-8.

Reviewed by James Bolner, Sr., Department of Political Science, Louisiana State University, Baton Rouge
 

Three of the six authors of this book are law professors at the University of Chicago; one teaches law at Yale Law School and one at Columbia Law School; the remaining author is a law clerk to a federal Court of Appeals judge. They accomplish an impressive feat--they produce a coherent and intelligent book while working as a committee of six. Their subject, the privilege against self-incrimination, is a complex one and one which has been the subject of much study by constitutional and historical scholars for several centuries. Most of the book's pages (close to 300) are devoted to analyses of the practices of yesteryear, and which serve to illuminate contemporary legal practices and doctrines. The book's essays are appropriately framed by a lucid and highly instructive introduction by Professor Helmbolz and an equally helpful concluding essay by Professor Alschuler. The focus is consistently the impact of British ideas and procedures upon the colonial and post-colonial American criminal justice system. The book's tone and vocabulary will limit its audience to the realm of academia, and this is unfortunate, since the authors' work provides a splendid resource for that should interest anyone interested in criminal justice.

Research on criminal procedure quite often yields astonishing findings. For example, until relatively recently (the early 1730s) felony defendants were not permitted to have counsel appear on their behalf, and the practice of the "right to counsel" did not begin to take root before the latter part of the 1700s. Defendants did not have a right to remain silent; it was perfectly acceptable for the defendant to be questioned and for appropriate inferences to be drawn when a defendant refused to speak. Moreover, answers given under oath were generally not admissible, since they were considered to be compelled in view of the defendant's fear of eternal damnation in the event of lying. The pre-modern era was characterized by criminal proceedings focusing on the testimony of the defendant ("the accused speaks"). As attorneys came to play a larger and larger role in criminal proceedings, the nature of criminal proceedings underwent a drastic change: they became marked by the defendant's silence and by the preeminent position of the defendant's counsel ("the counsel speaks").

The titles of the six substantive chapters following Professor Helmbolz' illuminating introduction imparts an accurate impression of the scope as well as the erudite character of the volume. The listing also reflects the roughly historical organization of the work. The titles are: "The Privilege and the IUS COMMUNE: The Middle Ages to the Seventeenth Century" (Professor Helmbolz); "Self-Incrimination in Interjurisdictional Law: The Sixteenth and Seventeenth Centuries " (Professor Gray); "The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries" (Professor Langbein); "The Privilege in British North America: The Colonial Period to the Fifth Amendment" (Professor Moglen); "The Modern Privilege: Its Nineteenth-Century Origins" (Mr. Smith); "A Peculiar Privilege in Historical Perspective" (Professor Alschuler).

The unifying theme of the six essays which comprise the book can be summarized as follows: developments of the last century and a half or so have largely abandoned the original understandings surrounding the privilege against self-incrimination; therefore, rolling back the scope of the privilege would be a wholesome reform and one which would be in keeping with our constitutional and legal heritage. This theme is artfully set forth in the introduction and is admirably sustained throughout the work; it is once again articulated near the end of the book by Professor Alschuler, whose closing essay brings the various elements together.

One does not get a sense that the authors are not pro law enforcement per se. They are unquestionably serious scholars bent on an accurate representation of the constitutional past. One does find that the authors are also advocates of reform, and there is a utilitarian dimension to their advocacy. It is the union of practical considerations and historical research that accounts for the book's appeal. The chief reform which the authors endorse (in the concluding essay by Professor Alschuler) is the abandonment of much of the broadening of the rights of criminal defendants' privilege against self-incrimination which blossomed during the tenure of Earl Warren as Chief Justice of the United States. Alschuler admits that "In a very different world from that of the early American republic, restoring the original understanding of the Fifth Amendment privilege is impossible." Just before claiming that the Miranda decision of 1966 lacks both utilitarian and historical justification (p. 203), he argues that it would be a good thing if the United States were to do as England has done: "treat sworn statements in the same manner in which the framers of the Fifth Amendment treated unsworn statements. Just as the framers expected defendants to speak at trial, courts would now expect them to testify. GRIFFIN V. CALIFORNIA [the 1969 U.S. Supreme Court case holding that prosecutors and judges may not draw any inferences from the failure of a defendant to testify on his or her own behalf] would be overruled along with MIRANDA. The privilege would remain a safeguard against torture and other forms of coercive interrogation (although not against the coercion once thought inherent in the oath)" (p. 202). As a concession to the past, he continues, defendants might be permitted to testify under oath, but without fear of being prosecuted for perjury.

What the authors of THE PRIVILEGE AGAINST SELF-INCRIMINATION have to say (that we should rethink the broad scope of the privilege against self-incrimination) is bound to provoke anger in certain quarters and applause in others. Their critics--those who see the broadening of the privilege's scope as a positive good--will see the work as an unwarranted manifestation of the prevailing conservativism pervading so much of the American populace. Those who will applaud this work will be those who find appeal in any call to return to the "original intent" of the Constitution. These persons, already inclined to be sympathetic to judicial self-restraint, will be heartened by the authors' findings and recommendations. While the authors are genuinely serious historical researchers who document the value of the older versions of the privilege, it might appear that they are advocating a return to the golden days.

This work is thoroughly documented (with notes for each chapter collected at the end of the book); its value is enhanced by an impeccable index. It is the work of seasoned professionals who must draw high praise for the quality of their writing, the depth of their research, and the tightness of their organization. Those who would fault these authors must chastise them for not writing a different book, one that looks at the present and the future. Indeed, the only possible shortcoming which one may point out is that, consistently with its call for a return to the pre-MIRANDA days, there is little or no attention given to contemporary problems of criminal justice administration.