The Historical Origins of the Privilege Against Self-Incrimination at Common Law

Abstract

The appearance of the privilege against self-incrimination - the guaranty that no person "shall be compelled in any criminal case to be a witness against himself" - was a landmark event in the history of Anglo-American criminal procedure. Prior historical scholarship has located the origins of the common law privilege in the second half of the seventeenth century, as part of the aftermath of the constitutional struggles that resulted in the abolition of the courts of Star Chamber and High Commission. This essay explains that the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel.