The Right to Counsel and Privilege Against Self-Incrimination: Rights and Liberties Under the Law.

Vol. 15 No.2 (February 2005), pp.143-144

THE RIGHT TO COUNSEL AND PRIVILEGE AGAINST SELF-INCRIMINATION: RIGHTS AND LIBERTIES UNDER THE LAW, by John B. Taylor. Santa Barbara, CA: ABC-CLIO, 2004. 399pp. Cloth $55.00. ISBN: 1-57607-618-0.

Reviewed by Rosalie R. Young, Associate Professor, Public Justice Department, State University of New York at Oswego. Email: ryoung@oswego.edu

This volume is one of a series entitled “America’s Freedoms,” edited by Donald Grier Stephenson, Jr., on the rights emanating from the Bill of Rights and other amendments to the United States Constitution. John B. Taylor is the Louis L. Goldstein Professor of Public Affairs and chair of the department of political science at Washington College in Chestertown, Maryland. His research focuses on American constitutional law and civil liberties.

The volume begins with the English efforts to determine guilt through statements under oath, by survival of a physical ordeal, or by hiring a champion to represent one in battle prior to and during the Norman era. A brief review of the history of the origins of the right to counsel and the privilege against self-incrimination leads to a primary focus on the twentieth century constitutional cases in these two areas. Professor Taylor then demonstrates that these two rights become interdependent during the “MIRANDA Revolution.” The author ends with a discussion of the interpretation of these rights in the terrorism cases in the period since the attacks on Washington, D.C. and New York on September 11, 2001. He concludes with the telling statement that “virtually nothing in American constitutional law is ever finally settled,” leading us to recognize that the interpretation and the implementation of the right to counsel and the privilege against self-incrimination is one of many constitutional works in progress (p.277).

The final chapters and appendices include an alphabetical listing of key people, cases, and events, excerpts from the majority decisions on four key cases, a chronology of events, and a well annotated bibliography of general legal works, resources specific to the right to counsel and privilege against self-incrimination, and MIRANDA, as well as key internet resources, and a table of cases. References cited in each of the six substantive chapters are listed at the end of each chapter. This material serves as a useful reference for the reader who can easily become overwhelmed by the winding path the case law has followed, although the topical nature of the annotated bibliography requires careful reading.

Taylor tackles two vital American rights that have set the stage for much of our judicial processes. He correctly describes his topic as a “challenge to author and reader alike” (p.xxii). While his goal was to produce a volume suitable for a serious general reader or a course on these specific constitutional issues, the amount of material and the ambiguous nature and order of many [*144] of the relevant cases, particularly on self-incrimination, make this volume difficult for most readers. At times, the lengthy sentences and confusing order add to the ambiguity. This volume would be a positive asset to those scholars attempting to update their knowledge of the right to counsel and/or the privilege against self-incrimination, or as an adjunct to other more general legal resources where a teacher wishes to demonstrate the impact of social change and politics on the development of our constitutional rulings.

Throughout the volume, Taylor clearly demonstrates the struggle on the Court to balance the responsibility to protect rights of suspects and defendants and the obligation of law enforcement officials to protect society by investigating crimes and prosecuting criminals. The author has wisely focused on Supreme Court decisions with minimal references to state or lower federal courts or special issues such as juvenile proceedings. While brief, his summaries of the facts of cases leave the reader with a positive feel for the issues involved. He uses excerpts from majority opinions, and to a lesser extent from dissents, to clarify the controversial nature of many of the Court’s decisions and the frequent disagreement among the justices.

The wise reader will pay special attention to the two introductory chapters that set the stage for the remainder of the book. These chapters clearly demonstrate the evolution of the trial process and defendant rights. While subsequent chapters focus on the separate routes of the right to counsel and the protection against self-incrimination, the author clearly demonstrates the convergence of these two issues. Without counsel, a defendant may be unable to protect him or herself from self-incrimination.

Taylor makes the material relevant to a variety of readers by describing such controversies as the differences between law enforcement use of private communication and organizational material, even when held by the same individual, the compulsion to produce body fluids, and the question of whether the right to counsel requires adequate and effective counsel. The discussion of the impact and use of MIRANDA warnings will draw in readers as will the questions about detention and prosecution of Americans and aliens implicated in the war on terrorism.

This volume requires careful reading, sometimes because of the way the material is handled, but more often because of the “zig zag” case law history. The persistent reader will, however, be rewarded with both a general understanding and specific knowledge about these Fifth and Sixth Amendment rights.

CASE REFERENCES:

MIRANDA v. ARIZONA, 384 US 436 (1966).

************************************************************