by Jodi L. Miller
If you’ve ever watched an episode of Law & Order or some other police procedural, you’re probably familiar with the Self-Incrimination Clause of the Fifth Amendment, which states, “No person…shall be compelled in any criminal case to be a witness against himself…”
The concept behind the right against self-incrimination, also known as “taking the fifth” and “remaining silent,” is that individuals charged with a crime should be proven guilty by the government. They should not be required to prove their innocence.
The Framers of the U.S. Constitution saw firsthand the way a government can abuse the rights of citizens. George Thomas, a professor at Rutgers Law School in Newark who teaches courses on criminal law and constitutional law, says the Framers were heavily influenced by England’s Star Chamber.
The Star Chamber was an English court in existence from the late 15th century up to the mid-1600s. It was originally established to enforce laws against socially and politically prominent people. The theory was that the Star Chamber court was needed because ordinary courts would be too intimidated to convict the powerful of criminal acts. Later, it would be used as an instrument of oppression rather than justice.
“The Star Chamber had the power to require people to show up and swear an oath to tell the truth,” Professor Thomas says, referring to the coercive ex officio oath that those brought before the Star Chamber were forced to swear. “The Framers of our constitution were afraid of the power of the central government. They wanted to make sure people could not be hauled into court and required to testify.”
Here is a description from the Library of Congress of what someone brought before the Star Chamber could expect:
“You are made to stand before a judge who refuses to give you any details about the charge laid against you. You are forced to take an oath before your God to answer truthfully any questions that might be put to you—questions on any topic at all. And you are warned that refusing to answer these questions for any reason will be viewed as contempt of court, for which you may be imprisoned, lashed or tortured as it pleases the judge.”
Those coming before the Star Chamber found themselves in a situation called “the cruel trilemma” or “cruel choice,” meaning that those facing the court had three options, according to the Library of Congress. “You may lie (i.e., violate your oath and thereby sacrifice your soul), you may accept brutal punishment for your refusal to obey the court or, finally, you may incriminate yourself and suffer whatever may be in store for you as a result of a conviction.”
Professor Thomas doesn’t think that description gets to the heart of the problem with the Star Chamber.
“In a nutshell, it was that courts should not be permitted to compel a witness to testify, whether the witness is guilty or innocent,” Professor Thomas says. “That is what informs our Fifth Amendment privilege not to be compelled to be a witness.”
In 1637, John Lilburne came before the Star Chamber. Lilburne was a member of a political movement called the Levellers. The movement was anti-monarchy and advocated for religious liberty and equality under the law. Lilburne famously refused to answer the Star Chamber’s questions, saying: “I am unwilling to answer any impertinent questions, for fear that with my answer, I may do myself hurt. This is not the way to get to Liberty.”
Lilburne was held in contempt and fined 500 English pounds, which would be more than $120,500 today. He was also sentenced to a public whipping, dragged through the streets and imprisoned. Eventually, Lilburne was released but he never stopped preaching that Englishman are born with liberties, including the presumption of innocence and freedom from coerced self-incrimination. After the mistreatment of Lilburne and many others, the Star Chamber was abolished in 1641.
According to Professor Thomas, our court system owes something else to the Levellers who believed it was a sin to swear an oath.
“If you notice today, when people are sworn in to testify in court, they are asked if they ‘swear or affirm’ to tell the truth,” he says. “If they believe it’s somehow wrong to swear an oath, they can get by with saying, ‘I affirm that I’m going to tell the truth.’”
The right to remain silent
The Miranda Warning is another term you may be familiar with from police dramas. It requires law enforcement to advise a suspect of their Fifth Amendment right against self-incrimination and starts out: “You have the right to remain silent. Anything you say can and will be used against you in a court of law,” and continues on. The Miranda Warning, named after Ernesto Miranda, comes from the Fifth Amendment right against self-incrimination.
In 1966, the U.S. Supreme Court decided the case of Miranda v. Arizona by a 5-4 margin, cementing the rights outlined in the Miranda Warning. The case involved Ernesto Miranda who was arrested in 1963 and accused of the sexually assaulting and kidnapping an 18-year-old woman. Miranda confessed to the crime under police questioning; however, his attorney argued that Miranda wasn’t informed that he did not have to speak to police, or that he could request an attorney.
The Court held in Miranda that “the prosecution may not use statements…stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” In other words, the police are required to advise suspects in custody of their rights under the U.S. Constitution.
Writing for the majority of the Court in Miranda, Chief Justice Earl Warren cited John Lilburne as an inspiration for self-incrimination protection.
“We sometimes forget how long it has taken to establish the privilege against self-incrimination… the critical historical event shedding light on its origins and evolution was the trial of one John Lilburne, a vocal anti-Stuart Leveller, [Stuart refers to the king at the time of Lilburne] who was made to take the Star Chamber Oath in 1637,” Chief Justice Warren wrote. “The oath would have bound him to answer to all questions posed to him on any subject. He resisted the oath and declaimed the proceedings, stating: ‘Another fundamental right I then contended for, was, that no man’s conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.’”
As a result of the Court’s ruling, Miranda’s conviction was thrown out and his confession could not be used against him at his re-trial. Relying on other evidence against Miranda, the prosecution secured a conviction. He served 11 years in prison and was paroled in 1972. In 1976, Miranda was stabbed to death in a bar fight in Arizona. The person suspected of killing Miranda was arrested; however, he chose to invoke his Miranda Rights and remained silent. Without a confession, the police had insufficient evidence to hold him. No one was ever charged with Miranda’s murder.
So, what were police interrogations like before the Miranda ruling? Professor Thomas says the simple answer is that we don’t really know.
“We don’t know because none of them were recorded and if they did use coercion, the police would have no interest in admitting it,” Professor Thomas says. “What we do know is, even today when suspects waive their Miranda rights, the interrogation can be pretty intense and go on for hours.”
It should be noted that, while the Miranda Warning provides protection for suspects, it doesn’t mean that they cannot be charged or tried for a criminal act. It simply means that any confession or statement given without a Miranda Warning could be ruled inadmissible by a judge. Other evidence obtained apart from an inadmissible confession, just like in the Miranda case, could be used against the suspect.
Professor Thomas notes there is a myth that if you’re not read your rights by the police when being questioned, that the case against you has to be thrown out.
“The remedy for a Miranda violation is simply to suppress any statements made to the police. It doesn’t preclude other evidence,” he says.
Remaining really silent
In July 2010, the U.S. Supreme Court added a new layer to the Miranda process. In Berghuis v. Thompkins, the Court ruled 5-4 that criminal suspects must specifically tell the police that they want to remain silent or want a lawyer before their Miranda rights are invoked.
The case before the Court involved Van Chester Thompkins, who was arrested in 2001 in connection with a Michigan murder. While in police custody he was read his rights, and he told police he understood them. During nearly three hours of questioning, he mostly remained silent, until one officer asked him if he prayed for forgiveness for “shooting that boy down.” When Thompkins responded “Yes,” his statement was used against him in court, and he was sentenced to life in prison.
Thompkins fought to have his statement thrown out, claiming he had invoked his Miranda right by generally remaining silent throughout his interrogation. The U.S. Supreme Court disagreed, ruling that once a suspect is read his rights and acknowledges he understands those rights, if he then responds to police questions his right to remain silent is automatically waived.
The majority of the Court indicated that not requiring suspects to state their intentions makes the job of law enforcement more difficult, since police are forced to guess about a suspect’s intentions.
“Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,” Justice Anthony Kennedy wrote in the Court’s majority opinion. “Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”
In her dissenting opinion Justice Sonia Sotomayor wrote: “Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which counterintuitively requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”
Discussion Questions
- Why do you think England’s Star Chamber made such an impression on the Framers of the U.S. Constitution? What did they learn from it?
- Given that anyone questioned by the police has always had a Fifth Amendment “right to remain silent,” is the Miranda Warning necessary? Why or why not?
- What do you think about the Berghuis v. Thompkins case? Do you agree or disagree with the Court’s ruling in the case? Explain your answer.
Glossary Words
coercive — to be persuasive in a negative way or to force a person to think or act in a given way by pressure, threats or intimidation.
contempt of court — intentional failure to comply with a court order or judgment. Contempt of court is punishable by fine or imprisonment, or both.
dissenting opinion — a statement written by a judge or justice that disagrees with the opinion reached by the majority of his or her colleagues.
monarchy — a government ruled by a monarch (king or queen).
suppress — to exclude evidence from a criminal proceeding.
This article originally appeared in Constitutionally Speaking—The Fifth Amendment