The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part I)* LAWRENCE HERMAN** TABLE OF CONTENTS I. INTRODUCTION ............................................................. 102 II. HISTORY ...................................................................... 106 A. EarlyHistory ............................................................. 106 B. 1246-1368................................................................. 109 1. Compelled Self-Incrimination.................................... 109 2. Admissibility of Confessions..................................... 111 C. 1368-1553 ................................................................ 112 1. Compelled Self-Incrimination.................................... 112 2. Admissibility of Confessions ..................................... 114 D. Mary I and Elizabeth 1: 1553-1603 ................................. 116 1. Compelled Self-Incrimination.................................... 116 2. Admissibility of Confessions ..................................... 128 E. James I. 1603-1625 .................................................... 129 1. Compelled Self-Incrimination.................................... 129 2. Admissibility of Confessions ..................................... 133 F. England 1625-1700..................................................... 134 1. Compelled Self-Incrimination.................................... 134 2. Admissibility of Confessions ..................................... 143 G. England 17(X-1850 .................................................... 147 H. America ................................................................... 162 1. Compelled Self-Incrimination.................................... 162 2. Admissibility of Confessions...................................... 165 "How the contents of these doctrines relate to each other, and whether the combination of them makes any sense, has been a matter of underlying but seldom acknowledged concern." George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987Supreme Court Ters, 67 TExAS L. REV. 231, 234 (1988), ** President's Club Professor of Law Emeritus, The Ohio State University. I am grateful to Professors Yale Kamisar and George Dix for reading and commenting on an earlier version of this article. I acknowledge with thanks the work of my student research assistants Lori A. Black, J.D. '90, and Elise W. Porter, .D. '91, both of whom provided valuable research and editorial assistance. Ms. Porter in addition strove to insure that the footnotes are in proper form-a thankless task for which I am particularly thankful. OHIO STATE LAW JOURNAL [Vol. 53:101 II. HISTORY AND BEYOND: IS THERE A RELATIONSHIP BETWEEN THE COMMON LAW EXCLUSION OF INVOLUNTARY CONFESSIONS AND THE COMMON LAW PROTECTION AGAINST COMPULSORY SELF- 170 INCRIMINATION 9 ...................... ..... A. Introduction: Wigmore's Position................................... 170 B. Wigmore"s Position Evaluated....................................... 172 1. Operations........................................................... 172 2. Histories .............................................................. 176 3. Objectives............................................................ 180 4. Conclusion........................................................... 194 C. Evaluating and ExplainingEnglish and American Materials ..................................................................... 195 1. English Materials.................................................. 195 2. American Materials................................................ 204 3. Evaluating the English and American Exclusionary Materials............................................ 207 I. INTRODUCTION In Miranda v. Arizona, the Supreme Court explicitly held that the Fifth Amendment's privilege against compulsory self-incrimination was applicable to police interrogation of a suspect in custody and supplied the test for determining the admissibility of the suspect's confession. 1 In taking this position, the Court necessarily rejected the view of dissenting Justices Harlan and White that the admissibility of confessions should be determined not by the Fifth Amendment's privilege, but by the due process rule that bars involuntary confessions. Before Miranda, the due process rule had been the principal constitutional restriction on the admissibility of police-induced confessions. 2 The most influential authority upon which the dissenting opinions rested was the 1961 revision of Wigmore's Evidence which stated that "[t]he privilege at common law did not apply to police interrogations, and, in view of the development of the complementary constitutional doctrine excluding coerced confessions, it is doubtful that there is sufficient reason today to distort the [constitutional] privilege to cover this situation." 3 Wigmore's rationale was that Since police have no legal right to compel answers, there is no legal obligation to which a privilege in the technical sense can apply. That is, it makes no sense to say that one is privileged not to disclose-that one is 1 384 U.S. 436, 458-67 (1966). 2 See id. at 510-11 (Harlan, I., dissenting); id. at 526, 528 (White, I., dissenting). 3 8 JoHN H. WIGMORE, EVIDENCE § 2252, at 328-29 (McNaughton rev. 1961) [hereinafter 8 WIGMORE] (cross-reference omitted). 1992] SELFINCRIMINATION AND DUE PROCESS excused from the legal consequences of contumacy-when there are no legal 4 consequences of contumacy. Although Miranda was controversial, particularly in the late 1960s, the sticking point was that the Court had interpreted the privilege to require the police to give advice and obtain a waiver before engaging in custodial interrogation. Largely as a result of two trenchant articles by Professor Yale Kamisar,5 even those who disparaged Miranda's advice/waiver approach seemed to accept that the Court was correct in applying some version of the privilege to police interrogation. 6 Indeed, while roundly condemning Miranda and urging that it be overruled, the United States Department of Justice under Attorney General Edwin Meese III conceded that "[t]he applicability of the Fifth Amendment at [the police interrogation] stage is in fact consistent with the historical understanding of the Fifth Amendment right." 7 In recent years, however, some of the the scholarly literature has disclosed a yearning to return to the days when the due process rule was the only constitutional law test for determining the admissibility of confessions obtained by police interrogation.8 The Supreme Court is probably congenial to this view. Referring to police interrogations that fall outside the scope of Miranda, Chief Justice Rehnquist said for the Court in Coloradov. Connelly, "The Court has retained this due process focus, even after holding, in Malloy v. Hogan, 378 U.S. 1 (1964), that the Fifth Amendment privilege against compulsory self-incrimination applies to the States." 9 Implicit in this statement is the 4 Id. it 329 n.27. 5 Yale Kamisar, A Dissentfrom the Miranda Dissents: Some Comments on the "New" Fifth Amendment and the Old "Voluntariness" Test, 65 MICH. L. REv. 59 (1966) [hereinafter Kamisar, Dissent]; Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Crminal Procedure, in CRIMINAL JUSTICE IN OUR TIME 1 (A.E. Dick Howard ed., 1965) [article hereinafter Kamisar, Equal Justice]. These articles are reprinted in YALE KAMIsAR, POLICE INTERROGATION AND CONFESSIONS 27, 41 (1980). 6 See Joseph D. Grano, Voluntariness, Free Will and the Lav of Confessions, 65 VA. L. REV. 859, 926-27 (1979). 7 OFFICE OF LEGAL PoLIcy, U.S. DEP'T OF JUSTICE, REPORT TO THE ATTORNEY GENERAL ON THE LAW OF PRE-TRIAL INTERROGATION 42 (1986). 8 See, e.g., Gerald M. Caplan, QuestioningMiranda, 38 VAND. L. REV. 1417, 1468, 1473-74 (1985); cf. Joseph D. Grano, Introduction-The Changed and Changing World of ConstitutionalCriminal Procedure: The Contribution ofthe DepartmentofJustice's Office of Legal Policy, 22 U. MICH. J.L. REF. 395, 397-98 (1989) (approving pre-Miranda cases that upheld the admissibility of confessions although the police denied the suspect's request for counsel). 9 Colorado v. Connelly, 479 U.S. 157, 163 (1986). This statement jibes with one made 12 years earlier by then-Justice Rehnquist in Michigan v. Tucker, 417 U.S. 433 (1974), in which the Court held that the suspect's confession had not been "compelled" by police interrogators in violation of his Fifth Amendment protection. One of the factors mentioned by Justice Rehnquist was that "there were no legal sanctions, such as the threat of contempt, OHIO STATE LAW JOURNAL [Vol. 53:101 position that the Fifth Amendment privilege and the due process rule are separate and distinct, that each has a separate sphere of operations, and that the sphere of the privilege does not include police interrogation. This position is explicitly stated in WigmoreYo Consequently, should the Supreme Court ever decide to dispatch Miranda, it is likely to buttress its opinion with the scholarship and reputation of Wigmore. 1 But was Wigmore right? Why are there separate rules? Why should one set of interrogation cases be governed by the Fifth Amendment privilege and another set (the police interrogation set) by due process standards? These questions, which jumped off the page when I carefully read Connelly, set me on the path of trying to ascertain what rules historically governed interrogations of all sorts in the English and American systems both before and