Criminal Law Bulletin
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.
Evans, Sheldon, "It's Alive!: How Early Common Law Changes in the Right Against Self-Incrimination Inform the Right's Continuing Relevance" (2015). Faculty Publications. 270.