The idea of remaining silent when faced with accusation has historical religious and legal roots. Moses teachings’, transformed to written form by the ancient Talmudic law had a complete ban on self-incrimination. The self-incrimination law could not be changed because it was viewed to contravene the natural instinct for survival. The ancient common law rule also had it that confusions must be voluntary. When the right to remain silent was included in the Fifth Amendment of the U.S. constitution, it was tied to a complicated and controversial history. The Supreme Court has applied three tenets in the constitution to evolve rules that govern police interrogation and the confession process. These three include the Sixth Amendment on the Right to Counsel, the Fourteenth Amendment clause on due process and the Fifth Amendment on Self-incrimination clauses. Each of these provisions has led the police to handle interrogation and confessions in varying ways (Samaha, 2012).


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Although it is argued that the self-incrimination concept is rooted in Talmudic law and the thinking of the early Christians, the current state was inspired by the happenings of the English Civil War sometime in the mid seventeenth century. Some Ecclesiastical courts such as the Star Chamber and the High Commission made use of an ex-officio oath to try to subvert religious dissent that was common among Catholics and Puritans. A suspect was required to respond to all the questions with honesty, even though such a suspect never knew what questions would be asked during trial. The authorities at the time did not need a basis to believe that the suspect committed the crime (Confessions – the Self-incrimination Approach historical background, 2016).


To clear matters, the bills of rights of the state applied in the 1770s and 1780s included a privilege that barred self-incrimination. For instance, section 8 of the Declaration of Rights of Virginia stated that in all criminal and capital prosecutions, one cannot be forced to provide evidence against oneself. Some critics argue that such provisions were provided only to guard existing procedures against the retrenchment of the British, not for reform purposes. Consequently, forced incrimination before peace justices was maintained as a norm (Confessions – the Self-incrimination Approach historical background, 2016).


When the 1787 constitution was presented before the states for them to ratify, over 50% of the states recommended amendments. Four of the conventions including North Carolina, Rhode Island, Virginia, and New York, pointed to the need to include the versions of sections 8 of the Virginia Declaration of Rights. James Madison, who was opposed to the Bill of Rights at the beginning, brought the bill to the House of Representatives. His proposal contained a clause to the effect that no one shall be forced to testify against themselves. No one opposed the change; therefore, the provision on self-incrimination was passed unanimously by the House. The senate passed it without changes. The states followed by ratifying the provisions and the rest of the Bill of Rights (Confessions – the Self-incrimination Approach historical background, 2016).


Development of rationale and justifications




A number of factors drew a clear line between the rights to counsel as outlined in the Fifth Amendment from that of the Sixth Amendment. Some of the factors include the reasoning of the Sixth Amendment clause on the right to counsel and circumstances in which such right is applicable. According to the Sixth Amendment, the accused is allowed to enjoy the right to counsel for their defense. According to the Supreme Court interpretation, the Sixth Amendment right to counsel clause serves two objectives: i) to minimize the unfairness in the adversarial legal system between those accused and the government that is bent on prosecuting them, and Ii) Preserving the integrity and fairness in criminal trials.


Since defendants in criminal trials are inherently less competent in handling the legal process compared to their government counterparts, the gaps provided the accused persons the possibility of countering with the intention to stop outcomes that relied more on might as opposed to right. The leveraging presence affords parity between the accused and the government. Such parity is desirable in a free law abiding society because the tenets of our adversarial criminal justice system states that partisan advocacy on either side of the case will enhance the eventual objective that those who are guilty should be convicted and the ones that are not guilty are acquitted. The protection against intentional government interference with the relationship between the client and their attorney’s privacy is another instance of the significant basis for the right to counsel jurisprudence encouraged by the Supreme Court’s Sixth Amendment.


The Sixth Amendment grants the accused the right to counsel after the formal initiation of charges. Such guarantee stops the government from acting in ways that interfere with the protections provided the accused persons by invoking such right. Such interference includes exploitation by the state of a chance to confront the accused persons not accompanied by their counsel. In addition, the court points out that after the start of the adversarial criminal proceedings, once the accused person has acquired the services of a lawyer, a clear set of safeguards provided by the constitution, aimed at protecting the client-lawyer relationship and privacy, is enforced. The Sixth Amendment therefore is intended to provide the right to fair trial even as it protects the privileges of the client to have a relationship with their lawyer without interference (Mims, 2010).


In a case in 1964, the Supreme Court on a majority decision of 5 to 4 decided to turn to the Sixth Amendment right to counsel provision as the ground for reviewing the confession cases of the state. In the case, the accused, Danny Escobedo requested the Chicago police to allow him to see his lawyer. The police turned down his request. Escobedo’s mother requested his lawyer to go to the station nonetheless. The officers still prevented the lawyer from meeting Danny Escobedo. Escobedo eventually confessed. However, the confession was annulled because it was made without Escobedo’s lawyer’s presence. In view of the court, when police investigation focuses on particular suspects, the criminal prosecution starts; and thus, the right to counsel must be respected. It points out that if the accused do not have a right to an attorney until they are presented for trial, and they make confessions before trial that with no lawyer around to advise them, it means that such a trial is an appeal from the interrogation (Samaha, 2012).


Four justices argued that if lawyers were allowed in the interrogation rooms, the whole purpose of confessions would be thwarted. They argued any sane lawyer would simply ask his client not to make any statement to the police. A justice White’s argument (he was dissenting), he did not see in any way that that there would be a dent in law enforcement by the rule delivered on that day. He pointed out that the need for order and peace was too insistent to allow that to happen. However, he noted that such enforcement would be made harder (Samaha, 2012).


The Self-Incrimination Approach


In 1966, the court suddenly dropped the right to counsel approach to custodial interrogation by the police. In the Miranda vs. Arizona case in 1966, in a 5 to 4 decision, he court relied on the self-incrimination provision in the Fifth Amendment. The self-incrimination and right to counsel doctrines as part of the due process are applied on combination to decide the fate of cases. In order to decide whether the police coerced a suspect before formal charges were instituted the courts refer to the Fifth Amendment’s clause on self-incrimination. On the other hand, in order to decide whether there was coercion after formal charges were instituted, the courts refer to the right to counsel clause in the Sixth Amendment. Further, to decide whether defendants and suspects voluntarily and knowingly made self-incriminating statements, the courts refer to the Fifth Amendment clause on due process (Samaha, 2012).


The Miranda case is popular for warnings that inherit its name. Doctrinally, though, the case is critical for shifting the focus of the court from due process and the concerns of the Sixth Amendment to the analyses of forced self-incrimination. If we are to understand how such a shift came about, it is important to review the structure and history of self-incrimination guarantees (Confessions – the Self-incrimination Approach historical background, 2016).


In order for a suspect o successfully claim that their right in the Fifth Amendment was violated, suspects have to prove three aspects: Incrimination, compulsion and testimony. According to the Fifth Amendment provisions, one cannot be compelled to be a witness against oneself. The Supreme Court interprets this to mean that the government cannot force you give testimony against yourself. However, it refers to the content, yet the content excludes the voice that spoke. So, it still provides a window for the government to compel you to utter certain words that will assist a witness to pick out your voice and identify it. The test for voluntary confession was relied on, to determine whether the suspects were forced to make confessions against themselves. The test points out that a confession fails the test if the circumstances of the confession suggest that there was duress or coercion (Samaha, 2012).


Three factors worked in combination to generate one of the most controversial, if hated decisions in the constitutional history of the U.S.; in the Miranda vs. Arizona case. The state of unease on the way police handled suspects and the atmosphere of intimidation around police centers, being dissatisfied with vagueness of to the totality of circumstances method and the restlessness about case by case procedures to determine whether confessions were given voluntarily led to the decision (Samaha, 2012).


My Take


The admissibility of statements extracted from a defendant while in custody or deprived of his freedoms in significant ways is the constitutional issue to decide. The current practice of interrogating a suspect while in custody is more psychologically inclined than physically. Such interrogation occurs in privacy and thus is secretive. We are preoccupied with this atmosphere of interrogation in Miranda’s case, and the disadvantages it presents. Miranda was arrested by the police and taken to a police interrogation room from where a confession was secured. It is evident that Miranda was put in an unfair situation and taken through harassing police interrogation drills. The potential for forceful confession is clear (Samaha, 2012).


In my view, if there are no carefully thought out safeguards, the practice of interrogation in custody is surrounded with a dark cloud of police excesses. These excesses deprive one of the rights to choose not to speak. In order to safeguard the rights of the suspects not to self-incriminate, the environment must be conducive that accords them the freedom not to do so. If a suspect must be interrogated, then, they must first be informed clearly that they have a right to remain silent. Such a warning is a necessary prerequisite in overcoming the pressures that characterize the interrogation circumstances and atmosphere. The privilege of the Fifth Amendment is vital in our constitutional rule of law. The adequate warning is central to the availability of such a simple privilege (Samaha, 2012).


Warning a suspect of the right to remain silent should be accompanied with a further informational statement that what a suspect says can and will be used against the individual in question. The warning does two things; firstly, it informs them of the existence of a privilege to remain silent. Secondly, it informs them of the consequences of forgoing the privilege. The individual is informed of the fact that they are faced with an adversarial accuser and that they are not amidst the company of individuals who are acting in their interest.


I believe that if someone is held for purposes of interrogation, they should be informed of the right to access counsel and to be accompanied by such counsel during the interrogation process. Pertaining to the warning on the right to remain silent, and that one’s words can be used against them, such a warning is mandatory before interrogation is done. There should never be insinuation of any kind that a suspect was aware of the right in place of the explicit expression of the right by the arresting agency (Samaha, 2012).


Incorporating integrity


The expectation in this value is that all stakeholders should hold back their decisions on issues until the legislative bodies of the state and advisory groups have had a chance to deal with the issues by making rules. There is no requirement by the constitution for specific code of procedures to protect against self-incrimination during custodial interrogation. The states and the congress have the liberty to develop their unique safeguards for this privilege providing they are as effective as fully informing the suspect of the privilege and the consequences of forfeiting such privilege. However, the issues are constitutional in nature. Therefore, they must be interpreted by the courts. The admissibility of interrogation statements/outcomes in the face of a claim by the defendant that it was acquired in unconstitutional circumstances is a matter that has been handled by the court for a long time. The courts have a challenge to enforce constitutional rights’ even as the judicial solutions to the issues of constitutional nature evolve. The courts have also found a way of doing it. In cases where constitutionally secured rights are involved, there can be no provision of rules or legislative action that can negate them (Samaha, 2012).


Judging from the testimony of the police and admission of Arizona, it is evident that Miranda was by no means apprised of the right to seek his attorney’s advice and to seek such an attorney to be resent during a confession. His right to be protected against self-incrimination was not guaranteed either. Therefore, since there were no such warnings, the statement stood inadmissible. The fact that he signed a statement outlining that he was fully aware of the rights to remain silent cannot be used to prove that he was accorded such rights and protected to make such choices (Samaha, 2012).


The Fifth Amendment provision against self-incrimination grants everyone the right to have counsel present during interrogation; the court thought. This right makes sure that one retains the privilege and choice to avoid self-incrimination. It also guards against the possibilities of self-incrimination. The Miranda right is basically a safeguard against compulsion; it probes only whether a suspect was coerced to waive his rights to avoid self-incrimination. It does not focus on deceptive techniques by the police outside the knowledge of the suspect. In summary, the Miranda Right applies only if: i) a suspect is held in custody, and ii) if the suspect is subjected to interrogation (Mims, 2010).




Confessions – the Self-incrimination Approach historical background. (2016). Retrieved November 3, 2016, from http://law.jrank..html


Mims, M. C. (2010). Trap for the Unwary: The Sixth Amendment Right to Counsel after Montejo v. Louisiana, A. La. L. Rev., 71, 345.


Samaha, J. (2012) Criminal Procedure (8th ed.) Belmont, CA: Cengage Learning