Taking the fifth: reconsidering the origins of the constitutional privilege against self-incrimination. From: Michigan Law Review | Date: March 1, 1994| Author: Moglen, Eben | COPYRIGHT 1994 Michigan Law Review Association. This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan.  All inquiries regarding rights should be directed to the Gale Group.Copyright information

The privilege against self-incrimination was accepted in 18th century North America more as a doctrine in opposition to imperial power than as a fundamental right that was protected as a practical matter. The right to jury trial was of central importance to colonists, and the privilege against compelled testimony was a corollary to this right. Scholars wishing to trace the origins of the Fifth Amendment should look to the practices of defense counsel in the late 18th and early 19th century an...