The Right Against Self Incrimination
Few constitutional provisions stir greater controversy than that portion of the Fifth Amendment prohibiting the compulsion of any person to be a witness against himself in a criminal case. Echoed in Article I, Section 19 of the Missouri Constitution, this provision has drawn praise from some quarters as the protection of a great human right, and jeers from others as a way for the guilty to sidestep the law.
The basis for this element of American law, and the founding fathers' belief in its necessity, dates back to the infamous Star Chamber and High Commission of 17th century England. Persons brought before either of those bodies would be put under oath to give a truthful answer to any and all questions asked on any subject. Failure to do so would result in torture.
Resentment of such practices grew so strong that the privilege against self-incrimination eventually became a part of the English common law. It excluded confessions made under threatening circumstances, promises of leniency, special treatment or violence of any kind. From this root grew the privilege that one evokes when one "takes the Fifth."
Most citizens of the United States would probably agree that such a provision was a necessary one in 17th century England, but would question the need for it in modern America. However, our own history has shown that the need for such a protection remains vital. In the years since the Bill of Rights provided the privilege against self-incrimination, the U. S. Supreme Court has had to strike down several methods of obtaining information. Whipping defendants until they confessed, interrogation for 36 hours without break, attempts to trick a confession out of a defendant, bullying a mentally defective person, holding an arrestee secretly for several days and the use of "truth drugs" are but a few of the practices which have been outlawed by the court's application of the Fifth Amendment.
Recent history shows that this protection is now being applied more completely than ever before. In its famous Miranda decision, the Supreme Court ruled that an arrestee must be advised of his constitutional right of silence before any questioning begins. Any time a confession is made, it must be voluntary; no longer may confessions and information be coerced from a person. This right has been expanded so that no one can be forced to produce personal private papers and books that could be used as evidence against him unless they were actually used as a part of the crime. If any illegal information or confession is used to obtain the conviction of a defendant, the conviction must be overturned.
Although the right against self-incrimination is guaranteed by the Constitution, it remains a right which may be waived. In early America, a defendant was never allowed to testify at his own trial. It was felt that this would be inviting perjury, as well as erode the right against self-incrimination. Maine was the first state to allow a defendant to take the stand in his own behalf, if he chose to, in 1857. Missouri followed suit in 1877.
Today a defendant may testify or he may choose to exercise his constitutional right against self-incrimination. Even if a defendant does testify, he may only be cross-examined on that to which he has testified. Only if a defendant chooses to testify may his past convictions be brought to the attention of the jury.
The bolstering of this right through court decisions has proven important not just to criminal defendants, but to all Americans. Anyone called to be a witness in a case may refuse to answer a question if it can be demonstrated that to do so would create a situation where a criminal charge could result. One may not flatly refuse to testify, but one can refuse to answer specific questions.
The lessons of England, and of our own history, show us that inhumanity can result without the written protection of basic rights. The privilege against self-incrimination protects one's right to privacy and, most importantly, protects the innocent from being coerced, threatened, tricked or otherwise forced into making statements which deprive them of the rights guaranteed to them as free citizens.