6.1 INTRODUCTIONN
6.101 Historical Development. One of the nation's most enduring and yet controversial privileges 1 the privilege against self-incrimination, can be summarized as follows: In any official proceeding, including before a grand jury, the holder of the privilege may not be compelled to give testimonial evidence unless he or she has waived the privilege or been given immunity. Because of its historical development and justifications, the scope of the Fifth Amendment privilege 2 is significantly greater than the strict wording of the privilege, that "no person . . . shall be compelled in any criminal case to be a witness against himself."
The privilege against self-incrimination is the result of over 400 years of English history during which compulsory self-incrimination was significantly involved in the struggle by the Crown to wrest control of the state from the church, the conflict between common law and ecclesiastical and civil law, and, finally, the ultimate conflict between the individual and the state. The issue first arose in a significant fashion in 1236 when the church in England began requiring that people answer incriminatory questions under what was to be known as the oath ex officio, 3 at first to inquire into the morality of individuals and then, more importantly, as a critical tool in the effort to stamp out heresy. By the early 1600s, the impropriety of requiring a person to testify against himself or herself was repeatedly urged, based in large part on either interpretation or misinterpretation of an old Latin maxim, and the common law courts often issued writs against the Crown's ecclesiastical court's use of the self-incriminatory oath. In 1637, John Lil-burne, charged with shipping seditious books into England, was turned over to the Crown's major prerogative court—the Star Chamber—for prosecution. Lilburne refused to take the oath ex officio and in the process became a public
[Page...
