The Privilege Against Self-Incrimination: Its Origins and Development

The Privilege Against Self-Incrimination: Its Origins and Development

by R. H. Helmholz, Charles M. Gray, John H. Langbein, Eben Moglen

Challenging the accounts of John Henry Wigmore and Leonard W. Levy, this history of the privilege against self-incrimination demonstrates that what has sometimes been taken to be an unchanging tenet of our legal system has actually encompassed many different legal consequences in a history that reaches back to the Middle Ages.

Each chapter of this definitive


Challenging the accounts of John Henry Wigmore and Leonard W. Levy, this history of the privilege against self-incrimination demonstrates that what has sometimes been taken to be an unchanging tenet of our legal system has actually encompassed many different legal consequences in a history that reaches back to the Middle Ages.

Each chapter of this definitive study uncovers what the privilege meant in practice. The authors trace the privilege from its origins in the medieval period to its first appearance in English common law, and from its translation to the American colonies to its development into an effective protection for criminal defendants in the nineteenth century. The authors show that the modern privilege—the right to remain silent—is far from being a basic civil liberty. Rather, it has evolved through halting and controversial steps. The book also questions how well an expansive notion of the privilege accords with commonly accepted principles of morality.

This book constitutes a major revision of our understanding of an important aspect of both criminal and constitutional law.

Editorial Reviews

James. Sr. Bolner
James R. Browning was appointed to the U.S. Court of Appeals for the Ninth Circuit by President John F. Kennedy in 1961 despite a Not Qualified rating from the American Bar Association and an attempt by Justice Felix Frankfurter to prevent the nomination. What Browning had going for him (aside from previous experience as an effective Justice Department lawyer) was that he was a liberal Democrat with a record of Democratic Party support and the backing not only of his Senators (who gave their approval to Browning and Russell Smith leaving the choice to the Justice Department) but the active efforts of the influential former Justice Department official James Rowe who personally intervened with Attorney General Robert Kennedy. Happily, it turns out that the ABA was dead wrong and not only has Judge Browning been a distinguished jurist, but as Chief Judge of the nation's largest circuit from 1976-1988 he was an innovative and creative judicial administrator. In the foreword to this volume Chief Justice William H. Rehnquist praises Judge Browning for his "vision and leadership." This book is a collection of fourteen essays by nine law professors and five political scientists that is devoted to the subject of judicial administration with a special focus on the innovations from the Browning years. Its subtext asks the question whether supporters of dividing the Ninth Circuit who argue that the circuit is too large and ungovernable have a good case or are off base. Arthur D. Hellman, professor of law at the University of Pittsburgh School of Law, not only edited the volume but is author of two of the fourteen chapters. The book is organized into seven parts and Hellman provides introductions to the essays. Hellman in the preface tells us why judicial administra- tion is important and is inextricably involved with judicial decisionmaking ("The structures and procedures of our court systems help to determine how, when, and by whom disputes will be resolved"). Hellman and his collaborators received "the full cooperation of the judges and staff of the Ninth Circuit" (p. 19). This meant that the authors had access to the "massive database already in existence as part of the Ninth Circuit's case-processing programs" (p. 19). Additionally, the authors had access to "internal documents" to help them evaluate the Ninth Circuit's work. Perhaps one consequence of this official cooperation is that very little in this volume is explicitly negative about the Ninth Circuit and its innovations although the authors do make suggestions for improvements. There is also no explicit support given for the idea of dividing the Ninth into two new circuits. Page 31 follows: Appropriately enough Hellman is the author of the chapter in Part One that sets out the institutional history and setting for the innovations of the Browning years. In Part Two, Maurice Rosenberg examines the adjudication history of the Browning period in terms of the efforts of Ninth Circuit judges to clarify "standards of review" (the title of his chapter). Rosenberg confides that he originally sought to assess the review standards of the circuit and to determine whether they succeeded in shrink- ing "hopeless appeals." But alas, he was unable to amass the data and was thus forced to make his assessment on the basis of "indirect evidence," and "inferences ... derived from the text of the standards, the cases applying them, and conversations with a sampling of judges and lawyers." (p 31). The result is a techni- cal legalistic analysis that should be of interest to those in this legal area. He concludes that "in the main the court of appeals has done a good job of articulating plainly the standards of review it applies " (p. 53). The other chapter in Part Two is by Arthur Hellman and is concerned with the extremely important and sensitive task of maintaining consistency in panel decisions. Maintaining consis- tency is certainly a tall order not only for such a large cir- cuit, but one whose membership includes liberal activists ap- pointed by Jimmy Carter and social agenda conservatives appointed by Ronald Reagan. (This latter consideration goes virtually unmentioned in this volume; perhaps the price of official cooper- ation is also a blind eye to the politics of the judiciary). Hellman reports that in a survey of the Ninth Circuit Judicial Conference done for this project some two-thirds of the district judge members and a higher proportion of lawyer members saw the circuit generally failing to resolve intra-circuit conflicts. But only two of the 21 circuit judges responding to the survey agreed with this assessment. Hellman, of course, offers his own evaluation which ultimately agrees with the large majority of the circuit judges. Hellman devotes special attention to the major innovation of the limited en banc panel. He also conducted an analysis based only on published opinions which he himself recognizes is a limitation. (Hellman expresses the "hope that some other scholar will take a look at the unpublished opinions in the not-too-distant future." [p 89].) The chapters in Part Three examine the innovations meant to cope with extreme volume stress on the circuit. John B. Oakley and Robert S. Thompson look at the screening process on the Ninth Circuit instituted at the start of 1982, whereby staff attorneys analyze the briefs and flag cases with jurisdictional defects, code issues to enable the grouping of similar cases, and weight the cases as to difficulty and complexity. Cases with low weights are assigned to screening panels whereas those with higher weights go to oral argument panels. A staff attorney prepares a bench memorandum (in effect, a draft of an opinion) that accompanies the case to the screening panel for decision. Each decision of the screening panel must be unanimous, otherwise the case is rescheduled for oral argument. Any judge on the screening panel is free to reject a case and to reroute it to an argument panel. About 2O percent of the cases are actually disposed of by screening panels. How do the screened cases compare to cases that go to argument panels? Oakley and Thompson provide such an analysis using as their source the Ninth Circuit's extensive docketing database. Page 32 follows: Jerry Goldman examines the implications of the screening process. Like a breath of fresh air, Goldman brings a social science perspective to his analysis. Goldman points out that aside from the absence of oral argument but with heavy reliance on staff attorneys, screening panels are characterized by their non-rotating composition and by the absence of face-to-face conferences all of which could have profound affect on group decisionmaking. But do they? Goldman tested for this by compar- ing approximately 1000 cases with low weights that were trans- ferred to argument panels to cases with comparable low weights decided by the screening process. He found nearly identical relief rates but a markedly higher publication rate for argument panel decisions. Goldman also conducted a small-scale survey of appellants to examine the perceptions of legitimacy of appellants whose cases were decided by argument panels as opposed to screen- ing panels. There was greater dissatisfaction of appellants with the screening panels. Goldman warns that "screening takes its toll on procedural fairness" (p.163) and suggests ways, aside from oral argument, for the circuit to remedy this problem. In 1978 the Ninth Circuit began utilizing an alternative method for processing bankruptcy appeals from bankruptcy judge rulings, a Bankruptcy Appellate Panel (BAP), consisting of a specialist panel of bankruptcy judges. BAP is an alternative to the regular method of district courts reviewing bankruptcy judge rulings. Michael A. Berch evaluates the BAP and pronounces it a smashing success. In Part Four, Daniel J. Meador's essay on "Struggling against the Tower of Babel'' is concerned with maintaining doctrinal consistency in the nation's largest circuit. Meador concludes that specialized appellate panels modeled after the BAP may be the only way out of the Tower of Babel. Paul D. Carring- ton in his essay refers to the Ninth Circuit as "An Unknown Court" because, as he delicately puts it, "the individuality" of the large number of Ninth Circuit judges who are shuffled around randomly in changing panels of three, makes it difficult for lawyers to predict "appellate outcomes." The "individuality" of the judges "will materially influence the decision on reasonably close questions of characterization and interpretation." (p. 2O9). But for Carrington this is not good because that only encourages appeals and floods the circuit with excess volume. A better solution is for predictability, he suggests, such as non- rotating panels assigned to oversee the work of individual district court judges. (God help the ACLU lawyer whose fixed panel consists of all Reagan appointees!). Carrington's other "helpful" suggestions include having these panels generally not write opinions but make their decisions on the spot aided by central staff memoranda. What a perfect world for the Reagan-- Bush social agenda folks -- a right-wing pc court with virtually no accountability. Part Five is taken over by political scientists. Thomas W. Church, Jr., focuses on court management as contrasted with case management, that is, on circuit governance, administration, and support services. He looks at the move toward decentralized administration, the court clerk's office and staff attorneys, the administrative chief judges, and the executive committee of the court, of appeals. Doris Marie Provine's chapter is entitled "Governing the Ungovernable: The Theory and Practice of Gover- nance in the Ninth Page 33 follows: Circuit," which is concerned with the circuit council and confer- ence and the attempts to democratize these institutions. Like Church, Provine relied on extensive interviewing of Ninth Circuit personnel and on internal court documents. Provine reviews the steps taken by Chief Justice Browning to bring about greater district judge participation in circuit governance. Stephen L. Wasby's attention is given to the role of the bar in governing the circuit, particularly in the circuit judicial conference, conference committees, and in the districts. Among his many findings are that white male lawyers from the big downtown firms are over-represented but that women lawyers' participation has increased. Black and Hispanic lawyers are "few and far between," as are criminal defense and civil rights lawyers and public interest and labor lawyers. But Wasby concludes that "Serious efforts ...continue to be made, to involve the bar in circuit governance and to facilitate lawyers' participation so that their place in the circuit conference will be a meaningful, not merely a symbolic, one." Yet "it cannot really be said that the Ninth Circuit has yet succeeded in securing genuine participation by the bar in circuit governance." (p. 317) Nevertheless, lawyer participation "serves to bind the circuit together" integrating this important constituency within the circuit system. Part Six is devoted to two essays that reflect on the Ninth Circuit experience. Judith Resnik nicely summarizes the studies from Part Five and offers her own thoughts. Resnik correctly questions a recommendation of the Judicial Council of the Ninth Circuit that the United States Judicial Conference consider the elimination of the right to an appeal and allow the circuits to control their dockets. This would mean that the decision of a lone federal district judge would for most intents and purposes be the end of the legal line for cases not accepted for appeal. Resnik points out that adoption of such a proposal would concen- trate "substantial power in the first tier of decision making." (p 329). She also perceptively notes that "Questions about the governance, structure, and mission of the Ninth Circuit are inevitably part of questions about the governance, structure, and mission of the entire system of which it is a part " (pp. 329-- 330). A. Leo Levin also offers his reflections and focuses on both successes and remaining problems. He explicitly confronts the move to divide the Ninth Circuit but begs off taking a position because the "issues are complex, and it would be inap- propriate, within the compass of this chapter, to attempt a detailed analysis." (p. 338). Levin praises Browning for his innovations and especially for promoting "the core values of openness, of consultation, of widespread participation in the decision~making process " (p. 341). The book ends with a tribute to Judge Browning by John R. Schmid- hauser. Schmidhauser's essay provides a brief history of the Ninth Circuit, a short biography of Judge Browning that discreet- ly leaves unmentioned the opposition to Browning's initial appointment as reported in the first paragraph of this review, Browning's leadership on the circuit, and his administrative accomplishments. Schmidhauser provides a capsule account of the battle to prevent splitting the Ninth Circuit and Judge Browning's leadership in that battle. The book has a remarkable unity of purpose and many of the different authors refer to the findings of other authors in the volume. One has the impression that each author read the work of the others and this makes for a more cohesive book and represents a genuine dialogue among the contributors. Arthur Page 34 follows: Hellman's introductions are helpful and to the point. This book is essential reading for students of judicial administration and also for both supporters and opponents of the proposal to divide the Ninth Circuit. The administrative innovations discussed should be of great interest to judicial administrators in other federal courts and in the state courts. The subject matter may appear dry but much is at stake and, as a general rule, the authors do justice to the material.

Product Details

University of Chicago Press
Publication date:
Edition description:
Sales rank:
Product dimensions:
6.00(w) x 9.00(h) x 1.00(d)

Customer Reviews

Average Review:

Write a Review

and post it to your social network


Most Helpful Customer Reviews

See all customer reviews >