It's Alive!: How Early Common Law Changes in the Right Against Self-Incrimination Inform the Right's Continuing Relevance

Authors

Sheldon Evans, St. John's University School of LawFollow

Document Type

Article

Publication Title

Criminal Law Bulletin

Publication Date

2015

Volume

51

First Page

615

Abstract

The intersection of the Self-Incrimination Clause and Miranda warnings has stemmed disagreement among courts on the scope and application of the right against self-incrimination. To aid in their dilemma, court's often embark on a historical inquiry to give insight into proper interpretations of the Clause. In light of a recent circuit split on one of the Clause's key terms—namely what constitutes a “criminal case”— this Article embarks on a historical inquiry that adds clarity to the topic. By highlighting the several ways the right against self-incrimination changed in its 200 year common law history before the Constitutional Convention, this Article argues that the right against self-incrimination was designed, and even intended, to change in the next several hundred years after its adoption into the Constitution.

Comments

Originally published in Criminal Law Bulletin, Vol. 51 No. 3, © 2015 Thomson Reuters