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Criminal Law Bulletin

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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.


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



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