No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
By the latter part of the eighteenth century, English and early American courts had determined that coerced confessions were potentially excludable from admission at trial because they were untrustworthy.1 For much of the nineteenth century, the Supreme Court invoked unreliability as the basis for excluding such confessions without mentioning the constitutional bar against self-incrimination.2
In the 1897 case of Bram v. United States, the Court suggested that the Fifth Amendment imposed separate restrictions on a confession’s admissibility. These restrictions focused on the confession’s voluntariness as an indicator of its trustworthiness as evidence. The Court wrote that in criminal trials in federal court, “wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’” 3
Although the Supreme Court approved this Fifth Amendment interpretation in subsequent cases4 and reaffirmed Bram itself,5 the Court held in 1912 that a confession should not be excluded merely because the authorities had not warned a suspect of his right to remain silent.6 “In other cases, the Court expressed doubts as to whether the Fifth Amendment’s protection against self-incrimination—rather than a common-law principle that forced confessions were untrustworthy—required exclusion of involuntary confessions from federal criminal trials.” 7 Because the Supreme Court had not yet ruled that the Self-Incrimination Clause applies to states through the Fourteenth Amendment, admissibility of confessions in state courts continued to be governed under due process standards developed from common-law principles. It was only in the 1960s, after the Court extended the Self-Incrimination Clause to the states, that a divided Court reaffirmed and extended the 1897 Bram ruling and imposed on both federal and state trial courts new rules for admitting or excluding confessions and other admissions made to police during custodial interrogation.8
- 3 John Wigmore, A Treatise on the Anglo-American System of Evidence § 823 (1940); Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 954–59 (1966).
- Hopt v. Utah, 110 U.S. 574, 584–85 (1884). At the time of the Court’s decision, Utah was a territory and subject to direct federal judicial supervision.
- Bram v. United States, 168 U.S. 532, 542 (1897).
- Ziang Sun Wan v. United States, 266 U.S. 1, 14–15 (1924). This case held that the circumstances of detention and interrogation were relevant on the question of a confession’s admissibility. Id.
- Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. United States, 223 U.S. 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963).
- Powers v. United States, 223 U.S. 303 (1912).
- United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v. United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 (1953).
- Miranda v. Arizona, 384 U.S. 436 (1966). According to John Wigmore, “there never was any historical connection . . . between the constitutional [self-incrimination] clause and the [common law] confession-doctrine,” 3 John Wigmore, A Treatise on the Anglo-American System of Evidence § 823, at 250 n.5 (1940); see also 8 id. at § 2266 (1961). The two rules appear to have developed separately. The bar against self-incrimination derived primarily from notions of liberty and fairness, whereas proscriptions against involuntary confessions derived primarily from notions of reliability. However, the rules stemmed from some of the same considerations. Some commentators have considered the confession rule in some respects to be an off-shoot of the privilege against self-incrimination. See Leonard Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination 325–32, 495 n.43 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 581–84, especially 583 n.25 (1961).