Amicus Curiae Brief — Carlos Vega, Petitioner v. Terence B. Tekoh

Supreme Court briefApr 6, 2022

Ask Donna

What actually matters in this document.

Text

No. 21-499

IN THE

Supreme Court of the United States

CARLOS VEGA,

Petitioner,

TERRENCE B. TEKOH,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF RESPONDENT

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

April 6, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

At the Framing, the Right Against SelfIncrimination Directly Prohibited

Interrogation Practices that Were

Deemed Inherently Coercive.......................

A. Development of the Right in England ...

B. Reception of the Right in America ........

II. The Framers Adopted the SelfIncrimination Clause to Prevent

Innovations that Would Undermine the

Common Law’s Protection from Coercive

Interrogation Practices ...............................

CONCLUSION .....................................................

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Bram v. United States,

168 U.S. 532 (1897) ............................

Butler v. McKellar,

494 U.S. 407 (1990) ............................

Chavez v. Martinez,

538 U.S. 760 (2003) ............................

Counselman v. Hitchcock,

142 U.S. 547 (1892) ............................

Dickerson v. United States,

530 U.S. 428 (2000) ............................

4, 6

Kyllo v. United States,

533 U.S. 27 (2001) ..............................

Lilburne’s Case,

4 Howell’s State Trials 1269 (1641) ..

Marbury v. Madison,

5 U.S. 137 (1803) ................................

Miranda v. Arizona,

384 U.S. 436 (1966) ............................

passim

Missouri v. Seibert,

542 U.S. 600 (2004) ............................

Moran v. Burbine,

475 U.S. 412 (1986) ............................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Murphy v. Waterfront Comm’n of N.Y.

Harbor,

378 U.S. 52 (1964) ..............................

Ohio v. Clark,

576 U.S. 237 (2015) ............................

Trial of Charles White,

17 Howell’s State Trials 1079 (1741)

Wilkes v. Wood,

98 Eng. Rep. 489 (C.P. 1763) .............

United States v. Burr,

25 F. Cas. 38 (C.C.D. Va. 1807) .........

United States v. Hubbell,

530 U.S. 27 (2000) ..............................

27, 28

Statutes and Constitutional Provisions

2 & 3 Phil. & M. ch. 10 (1555)...............

42 U.S.C. § 1983 ....................................

Mass. Const. of 1780, art. XII ...............

Mass. Body of Liberties, art. 45 (1641).

U.S. Const. amend. V ............................

2, 6, 26

U.S. Const. art. I, § 6 .............................

Va. Decl. of Rights § 8 (1776) ...............

TABLE OF AUTHORITIES – cont’d

Page(s)

Books, Articles, and Other Authorities

Albert W. Alschuler, A Peculiar Privilege

in Historical Perspective: The Right to

Remain Silent, 94 Mich. L. Rev. 2625

(1996) ..................................................

passim

Theodore Barlow, The Justice of Peace:

A Treatise Containing the Power and

Duty of that Magistrate (1745) ..........

Laurence A. Benner, Requiem for Miranda:

The Rehnquist Court’s Voluntariness

Doctrine in Historical Perspective,

67 Wash. U. L. Q. 59 (1989) ...............

passim

1 William Blackstone, Commentaries on

the Laws of England (1791 ed.) .........

3 William Blackstone, Commentaries on

the Laws of England (1766 ed.) .........

4 William Blackstone, Commentaries on

the Laws of England (1791 ed.) .........

12, 15

William Bradford, Of Plymouth Plantation

1620–1647 (Samuel E. Morison ed.,

1952) (1651) ........................................

1 Richard Burn, The Justice of the Peace

and Parish Officer (1810 ed.) ...............

Charges Against Governor Nicholson,

reprinted in 3 Va. Mag. Hist. & Bio.,

Apr. 1896 ..............................................

TABLE OF AUTHORITIES – cont’d

Page(s)

1 Joseph Chitty, A Practical Treatise

on the Criminal Law (1819 ed.) ... 12, 13, 14, 15

Continental Congress, To the Inhabitants

of the Province of Quebec (Oct. 1774), in

1 Journals of the Continental Congress

(1904) .................................................

Edward S. Corwin, The Supreme Court’s

Construction of the Self-Incrimination

Clause, 29 Mich. L. Rev. 1 (1930) ..... 7, 9, 10, 14

Michael Dalton, The Country Justice

(1690 ed.) ............................................

Thomas Y. Davies, Farther and Farther

from the Original Fifth Amendment:

The Recharacterization of the Right

Against Self-Incrimination as a Trial

Right in Chavez v. Martinez, 70 Tenn.

L. Rev. 987 (2003) .............................

passim

2 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan Elliot

ed., 1836) ...........................................

3 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan Elliot

ed., 1836) ...........................................

2 Matthew Hale, The History of the Pleas

of the Crown (1736 ed.) ..................... 14, 24, 27

TABLE OF AUTHORITIES – cont’d

Page(s)

2 William Hawkins, A Treatise of the

Pleas of the Crown (1762 ed.) ...........

William Waller Hening, The New Virginia

Justice (1795) ....................................

Samuel Johnson, A Dictionary of the

English Language (6th ed. 1785)......

Paul G. Kauper, Judicial Examination

of the Accused—A Remedy for the

Third Degree, 30 Mich. L. Rev. 1224

(1932) ............................................. 11, 12, 14, 17

John H. Langbein, The Historical

Origins of the Privilege Against

Self-Incrimination at Common Law,

92 Mich. L. Rev. 1047 (1994) ............

passim

Leonard W. Levy, Origins of the Fifth

Amendment: The Right Against

Self-Incrimination (1968) .................

passim

E.M. Morgan, The Privilege Against

Self-Incrimination, 34 Minn. L.

Rev. 1 (1949) ................................... 9, 13, 14, 28

Eben Moglen, Taking the Fifth:

Reconsidering the Origins of the

Constitutional Privilege Against

Self-Incrimination, 92 Mich. L. Rev.

1086 (1994) ........................................

passim

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Wesley MacNeil Oliver, Magistrates’

Examinations, Police Interrogations,

and Miranda-Like Warnings in the

Nineteenth Century, 81 Tul. L. Rev.

777 (2007) ..........................................

James Parker, Conductor Generalis: or the

Office, Duty and Authority of Justices of

the Peace (1764) .................................

R. Carter Pittman, Colonial and

Constitutional History of the Privilege

Against Self-Incrimination in America,

21 Va. L. Rev. 763, 774 (1934-1935) .

passim

The Revolution in New-England Justified

(1773 ed.) (1691) ................................

3 William O. Russell, Treatise on Crimes

and Misdemeanors (1896 ed.) ...........

2 Statutes at Large: Being a Collection

of All the Laws of Virginia (William

W. Hening ed., 1823) .........................

Carol S. Steiker, Second Thoughts About

First Principles, 107 Harv. L. Rev. 820

(1994) .................................................

3 Joseph Story, Commentaries on the

Constitution (1833)............................

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank, public interest law firm, and action center

dedicated to fulfilling the progressive promise of the

Constitution’s text and history. CAC works in our

courts, through our government, and with legal scholars to improve understanding of the Constitution and

preserve the rights and freedoms it guarantees. CAC

has a strong interest in ensuring that the Constitution

applies as robustly as its text and history require and

accordingly has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Officer Carlos Vega took Terrence Tekoh into a

small windowless room and questioned him about a reported crime. By the time they emerged, Vega had obtained a confession that was used against Tekoh in his

criminal trial. While Vega and Tekoh dispute what

happened in that room, they agree that Vega never

warned Tekoh of his right to an attorney or to refrain

from speaking, or that his statements could be used

against him—all contrary to this Court’s decision in

Miranda v. Arizona, 384 U.S. 436 (1966).

By employing a custodial interrogation to extract

a confession from Tekoh that was then used against

him, Vega participated in the deprivation of Tekoh’s

Fifth Amendment rights. His arguments to the

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or

submission.

contrary rest largely on the premise that the Amendment creates only a rule of evidence, not a direct limit

on the interrogation of detained suspects. That premise is at odds with the Amendment’s text and history.

1. Because Vega obtained incriminating testimony from Tekoh without alleviating the “inherently

compelling pressures” of an in-custody police interrogation, id. at 467, and because that testimony was

used in Tekoh’s prosecution, Tekoh was “compelled in

[a] criminal case to be a witness against himself,” U.S.

Const. amend. V. He was therefore deprived of a

“right[]” and “privilege[] . . . secured by the Constitution.” 42 U.S.C. § 1983.

Denying Vega’s liability, Vega and the United

States rely on two flawed assumptions. The first is

that the Fifth Amendment’s Self-Incrimination Clause

“operates in the courtroom, not the interrogation

room,” providing only a “rule of evidence,” U.S. Br. 4,

rather than “imposing a direct constraint on officers,”

Pet. Br. 18. The second assumption is that Miranda

goes further than the Fifth Amendment requires, suggesting that even a violation of Miranda at trial “does

not mean that the defendant’s Fifth Amendment

rights have been violated.” Id. at 20.

These arguments—like most arguments for limiting Miranda—are long on pronouncements about the

Fifth Amendment but short on analysis of its text and

history. The United States spends a single paragraph

on the Amendment’s text, relying exclusively on two

decisions that do not even mention the Fifth Amendment. U.S. Br. 7. Vega does even less. Pet. Br. 18.

Neither says a word about the Amendment’s history.

The text and history of the Self-Incrimination

Clause belie the assumptions made by Vega and the

government. From its inception through the Framing

era, the common law right against self-incrimination

functioned as a direct limit on how officials questioned

suspected wrongdoers in their custody. Far from supplying only an “in-court right,” U.S. Br. 4, the common

law right served primarily to restrain officials from using improper methods of interrogation to secure confessions before trial. It was thus recognized as a critical check on the government’s power to intrude on liberty when investigating crime.

Furthermore, the right against self-incrimination

always prohibited, as a categorical matter, conditions

of interrogation that were understood to be inherently

coercive. Those conditions included not only physical

abuse but also, notably, placing suspects under oath

before requiring them to answer questions. Just as

Miranda recognized the inherently coercive pressures

of a modern custodial police interrogation, the common

law reached the same conclusion about interrogation

under oath (among other practices), which was seen as

placing an intolerable threat of spiritual and secular

penalties on the person questioned. It did not matter

whether any particular individual actually felt psychologically compelled to confess by being put under oath.

Instead, the practice was categorically forbidden as

intrinsically coercive, “even if there was no actual coercion in real life.” Pet. Br. 21.

This understanding of the right against self-incrimination was the same in England and America. As

the American Revolution neared, one of the colonists’

main grievances was the use of inquisitions in “prerogative” courts to secure confessions for violating revenue laws. Resisting that practice, Americans came to

highlight the right against self-incrimination as a cornerstone of the common law protections for individual

liberty, which they demanded on equal terms with the

English. When the colonists separated from Britain

and established state declarations of rights—and later

when the Framers adopted the Bill of Rights to restrain the new federal government—they enshrined

this right in order to foreclose legislative innovations

that would impinge on the common law guarantee

they had come to cherish.

2. The most significant innovation affecting selfincrimination rights since the Framing has been “the

advent of modern custodial police interrogation.”

United States v. Dickerson, 530 U.S. 428, 434 (2000).

Today, armed law enforcement officers with a professional mandate to investigate crime, with broad powers of detention, and with career incentives to secure

confessions, are allowed to interrogate suspects in secret, away from public view, before those suspects are

charged with an offense and when no crime may even

have occurred.

That scenario would have been unrecognizable to

the Framers. In their era, professional investigative

police forces did not exist. Peace officers, who served

part-time and with limited powers of arrest, could not

interrogate detainees. Instead, questioning before

trial was limited to a single, well-defined process mandated by statute, in which witnesses and the accused

were examined by a justice of the peace. Those examinations were triggered only by a grand jury indictment or by the sworn allegations of an accuser who

was legally accountable for unfounded claims.

During such examinations, moreover, the common

law prohibited modes of interrogation that were understood to be inherently coercive. As noted, that included both physical compulsion and the placing of

suspects under oath. By the Framing era, the common

law also recognized that offering promises or threats

of any kind to an arrestee tainted any resulting confession. That rule similarly operated as a categorical

presumption that confessions given under particular

circumstances were compelled. It was against this

backdrop that the Framers inscribed the common law

right against self-incrimination into the Constitution,

securing it against future innovations.

3. In the latter half of the nineteenth century, law

enforcement underwent a gradual but sweeping transformation with the rise of professional police forces, see

Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 831-38 (1994), whose

stationhouse interrogations replaced the preliminary

examinations once conducted by magistrates under

the common law. Miranda was a belated application

of the Fifth Amendment to the new phenomenon of

“in-custody interrogation.” 384 U.S. at 441. It “recognized that custodial interrogations, by their very nature, generate ‘compelling pressures which work to undermine the individual’s will to resist and to compel

him to speak where he would not otherwise do so

freely.’” Moran v. Burbine, 475 U.S. 412, 420 (1986)

(quoting Miranda, 384 U.S. at 467).

“To combat this inherent compulsion, . . . Miranda

imposed on the police an obligation to follow certain

procedures,” id., prescribing “concrete constitutional

guidelines for law enforcement agencies . . . to follow,”

Miranda, 384 U.S. at 441-42. The decision requires

officers to give specific warnings to suspects about

their rights, id. at 444-45, and, beyond this “duty to

inform,” obligates them to “respect the accused’s decision to exercise the rights outlined in the warnings,”

Moran, 475 U.S. at 420; see Butler v. McKellar, 494

U.S. 407, 411 (1990) (“the Fifth Amendment bars police-initiated interrogation following a suspect’s request for counsel”).

Miranda’s requirements for custodial police interrogation were novel because “the routine practice of

such interrogation is itself a relatively new development.” Dickerson, 530 U.S. at 435 n.1. But those requirements go no further than the Fifth Amendment

demands. The point of Miranda’s “constitutional requirement” is to create “circumstances allowing for a

real choice between talking and remaining silent.”

Missouri v. Seibert, 542 U.S. 600, 604, 609 (2004). In

other words, giving Miranda warnings and respecting

the rights they describe negates the “inherently compelling pressures” of custodial interrogation, Miranda,

384 U.S. at 467, such that any incriminating statements that follow are not “compelled,” U.S. Const.

amend. V.

That Miranda’s rules can be characterized as

“prophylactic,” Pet. Br. 20, does not mean they are not

required by the Fifth Amendment. Miranda recognized that “the Constitution does not require any specific code of procedures for protecting the privilege

against self-incrimination during custodial interrogation,” and that its warnings are just one means of negating the inherent coercion of such interrogation. 384

U.S. at 490. Other safeguards are permissible, “so long

as they are fully as effective.” Id. But without Miranda warnings or “an adequate substitute,” Dickerson, 530 U.S. at 442, there has been no “solution for

the inherent compulsions of the interrogation process,”

Miranda, 384 U.S. at 467.

The text and history of the Self-Incrimination

Clause support that result. The Fifth Amendment

sought to secure, against future incursions, the common law protection from self-incrimination as the

Framers understood it. That protection operated before trial and directly prohibited interrogation methods that were deemed inherently coercive. Nothing in

the text of the Clause reduces it to a “rule of evidence,”

U.S. Br. 4, applicable only in court.

ARGUMENT

At the Framing, the Right Against SelfIncrimination Directly Prohibited

Interrogation Practices that Were Deemed

Inherently Coercive.

A. Development of the Right in England

Tracing to the Middle Ages, protection from selfincrimination “sprung from the essential nature of accusatory Anglo-Saxon criminal procedure,” Laurence

A. Benner, Requiem for Miranda: The Rehnquist

Court’s Voluntariness Doctrine in Historical Perspective, 67 Wash. U. L. Q. 59, 61 (1989), “which centers in

the grand jury,” unlike “the inquisitorial method of the

canon law, in which accusation might be by rumor,”

Edward S. Corwin, The Supreme Court’s Construction

of the Self-Incrimination Clause, 29 Mich. L. Rev. 1, 8

(1930). “The original formulation of the privilege was

embodied in the expression nemo tenetur prodere seipsum,” that is, “no one is bound to bring forth (i.e. accuse) himself.” Benner, supra, at 64 n.11, 74 n.50.

Protection from self-incrimination reflected common law limits on the prosecution of crime. “Central

to the Anglo-Saxon system of that time was the necessity of a precise and properly substantiated accusation,” and criminal proceedings were initiated only by

a complaint sworn under oath or by the indictment of

“an accusing jury.” Id. at 71. In contrast, under canon

law “a secret informant or the judge could institute a

proceeding in ecclesiastical courts based upon suspicion.” Id. “The hallmark of that inquisitional procedure was that persons were interrogated under oath to

learn information which could then be used as a basis

for a criminal prosecution.” Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment:

The Recharacterization of the Right Against Self-

Incrimination as a Trial Right in Chavez v. Martinez,

70 Tenn. L. Rev. 987, 1001 (2003).

From its inception, therefore, the right against

self-incrimination regulated how officials built their

cases against individuals who fell under suspicion—

promoting “an accusatorial rather than an inquisitorial system of criminal justice” by requiring “the government to leave the individual alone until good cause

is shown for disturbing him.” Murphy v. Waterfront

Comm’n of N.Y. Harbor, 378 U.S. 52, 55 (1964) (quotation marks omitted). It shielded people “from any interrogation at all in the absence of a formal charge

based upon sufficient cause,” as reflected in either

“oath or indictment.” Benner, supra, at 64. The protection thus governed “the initiation of criminal proceedings,” Albert W. Alschuler, A Peculiar Privilege in

Historical Perspective: The Right to Remain Silent, 94

Mich. L. Rev. 2625, 2640 (1996), by restricting methods of seeking evidence from suspected wrongdoers.

Officials could not “commence prosecutions by . . . conducting fishing expeditions, or by questioning on . . .

slender suspicion.” Id. at 2641.

This safeguard took on a prominent role and became “an established principle of justice” in the first

half of the seventeenth century. Benner, supra, at 61.

Increasingly, “the common-law courts issued writs of

prohibition to prevent inquisitional interrogation . . .

in the ecclesiastical courts.” Davies, supra, at 1001.

And they did so to stop interrogations during the preliminary stages of a prosecution under conditions that

were regarded as inherently coercive.

The common law’s resistance to ecclesiastical interrogations “focused upon the use of the oath ex officio.” Benner, supra, at 69. This oath was administered to someone “whom rumor had brought under

suspicion,” Corwin, supra, at 5, and who was ordered,

on pain of penalty, to “swear an oath to answer any

questions that the court might subsequently put to

him,” John H. Langbein, The Historical Origins of the

Privilege Against Self-Incrimination at Common Law,

92 Mich. L. Rev. 1047, 1073 (1994). Thus, the right

enforced by the common law courts did not concern

“persons under accusation by a proper mode of procedure,” but rather “the preliminary question of what

were the necessary incidents of such a procedure.”

Corwin, supra, at 8; see E.M. Morgan, The Privilege

Against Self-Incrimination, 34 Minn. L. Rev. 1, 2

(1949). The purpose of the right was to restrain interrogations that could lead to a formal accusation.

This right “became even more prominent as a response to the abuses associated with pretrial . . . interrogation in the Court of Star Chamber and, especially,

in the Court of High Commission,” where common law

protections were withheld. Davies, supra, at 1001.

Queen Elizabeth established the Court of High Commission to enforce religious conformity, and it “quickly

adopted inquisitorial procedures. Upon mere rumor of

heresy, the Commission would bring the suspect before it, force him to take the oath ex officio and then

subject him to interrogation without giving him any

details of the charge or the identity of his accuser.”

Benner, supra, at 74-75.

As the targets of these efforts “seized upon th[e]

concept of immunity from self-accusation,” Langbein,

supra, at 1073, the “common law courts restricted the

power of the High Commission to ask incriminating

questions of suspected religious dissenters,” Alschuler,

supra, at 2638-39. These courts did not ask whether

specific individuals actually felt coerced by such interrogations. Instead, protection from self-incrimination

became entrenched as an unconditional “right not to

be interrogated under oath in the absence of wellgrounded suspicion.” Id. at 2640.

This emphasis on prohibiting improper interrogations was evident in the high-profile trials of John Lilburne, who, “more than any other individual . . . was

responsible for the acceptance of the principle that no

person should be compelled to be a witness against

himself in criminal cases.” Leonard W. Levy, Origins

of the Fifth Amendment: The Right Against Self-Incrimination 313 (1968). Hauled before the Star Chamber in 1637 and ordered to take the oath ex officio without “a bill of complaint specifying the charges against

him” or “an opportunity to consult with counsel,” Benner, supra, at 78, Lilburne refused to be “ensnared” by

taking the oath, Corwin, supra, at 8. When he was

later tried for treason, Lilburne lodged the same objection at his arraignment—i.e., before trial—where he

proclaimed that “by the Laws of England, I am not to

answer to questions against or concerning myself.”

Lilburne’s Case, 4 Howell’s State Trials 1269, 1293

(1641). The presiding judge responded, “You shall not

be compelled,” id., thereby “acknowledging the right to

remain silent to incriminating interrogatories,” Levy,

supra, at 304.

Lilburne’s persecution “helped to spark a public

outcry against the oath ex officio that ultimately led to

the prohibition of the oath and the abolition of both the

High Commission and the Court of Star Chamber.”

Benner, supra, at 79. Following these events, which

were “among the most celebrated landmarks of English political and legal history,” the courts “came to internalize a privilege against self-incrimination” in routine criminal proceedings. Langbein, supra, at 1074.

Initially, conventional practice stood in tension

with that development. Id. at 1084. Pretrial questioning of criminal defendants had long been dictated by

the so-called Marian committal statute. See 2 & 3 Phil.

& M. ch. 10 (1555). Eventually regarded as antithetical to the common law, see infra at 15, this statute

provided that justices of the peace, before jailing a

prisoner charged with a felony, “should take the examination of such prisoner and the information of those

who brought him.” Paul G. Kauper, Judicial Examination of the Accused—A Remedy for the Third Degree,

30 Mich. L. Rev. 1224, 1232 (1932). The record of those

examinations could later be read at trial.

In the eighteenth century, however, “the rule

against self-incrimination was . . . carried over to the

preliminary examination,” resulting in “a gradual

abandonment of judicial interrogation of the accused.”

Id. at 1233. And even before those changes took root,

preliminary examination under the Marian statute

had important protections against the compulsion of

self-incriminating statements.

First, the accusatory structure of criminal law in

that era imposed high demands before a person was

subject to examination. Pretrial interrogation required an arrest, which in turn required “a sworn allegation by a named complainant that he had personal

knowledge that a crime had actually been committed,

not just probable cause that a crime might have been

committed.” Davies, supra, at 1004. Thus, no one

could be arrested—or interrogated—based merely on

suspicion or unsworn allegations. And groundless accusations would leave complainants liable to trespass

damages. Id. at 1005.

Together, these restrictions demanded “strong evidence of crime prior to the activation of government

criminal justice power,” id. at 1002, rather than allowing government power to be used to coerce that evidence from a suspect. Blackstone thus called it an established “rule of the common law” that “no man shall

be bound to accuse himself,” 1 William Blackstone,

Commentaries on the Laws of England 67-68 (1791

ed.), and that “his fault was not to be wrung out of himself, but rather to be discovered by other means, and

other men,” 4 id. at 296.

Even when the necessary procedural requirements were met, pretrial interrogation was limited to

examination by a magistrate after arrest, which “is the

only form of official interrogation regarding crime described by Blackstone.” Davies, supra, at 1003. Peace

officers “had no authority at all” to interrogate arrestees, id. at 1003, but rather were “under a duty to

bring an arrested person before a magistrate immediately,” Kauper, supra, at 1229; see 1 Joseph Chitty, A

Practical Treatise on the Criminal Law 40 (1819 ed.)

(“and if he be guilty of unnecessary delay, it is a breach

of duty”); 4 Blackstone, supra, at 296. Notably, too, the

justice of the peace conducting a preliminary examination was “a local gentleman active in civic affairs, not

a career officer of the state.” Langbein, supra, at 1060.

Most importantly, defendants could not be questioned at preliminary examinations under oath, because that was regarded as a form of intrinsic coercion.

The “coercive force of an oath . . . derived from both the

secular penalties for perjury and the supernatural

sanctions for falsely invoking God’s name,” the latter

entailing “a significance that modern observers may

not fully appreciate.” Alschuler, supra, at 2649, 2632.

Once under oath, a refusal to answer was contempt, a

false answer was perjury, and an incriminating truthful answer was self-condemnation. Thus, “lawyers of

the seventeenth and eighteenth centuries regarded

the threat of this punishment as compulsion.” Id. at

2632; see Theodore Barlow, The Justice of Peace: A

Treatise Containing the Power and Duty of that Magistrate 189 (1745) (“The Law of England . . . does not

use the Rack or Torture to compel Criminals to accuse

themselves,” and “for the same Reason . . . it does not

call upon the Criminal to answer upon Oath.”).

Because interrogation under oath was regarded as

inherently coercive, “a man could not be required in

England to accuse himself on oath in any proceeding,”

including “before a magistrate investigating an accusation against him.” Morgan, supra, at 12. Justice-ofthe-peace manuals consistently “declared that the

nemo tenetur principle precluded the interrogation of

suspects under oath,” regarding that condition as “incompatible with his privilege.” Alschuler, supra, at

2648, 2631; e.g., Michael Dalton, The Country Justice

411 (1690 ed.) (“The Offender himself shall not be examined upon Oath: for by the Common Law, Nullus

tenetur seipsum prodere.”).

Not only were defendants exempt from being put

under oath during pretrial examinations, they were

not required to answer questions at all. See Chitty,

supra, at 57 (while the Marian procedures “authorize

an examination, they are not compulsory on the prisoner to accuse himself”). To be sure, defendants faced

strong incentives to speak: a refusal to respond to the

accusation might be reported by the examining magistrate at trial. Langbein, supra, at 1061. But the possibility of a jury later drawing an inference of guilt was

the only penalty for silence. Alschuler, supra, at 2631;

see Chitty, supra, at 57 (“there is no mode of extorting

such confession or other statement from the prisoner”).

Moreover, “English criminal procedure underwent

a marked alteration” during the eighteenth century,

furnishing even stronger protection from self-incrimination as the questioning of defendants before trial

“ceased entirely.” Corwin, supra, at 10. With defense

counsel playing a greater role in proceedings, the focus

shifted from a defendant’s ability to rebut the

accusation against him toward an adversarial testing

of that accusation under a rigorous standard of proof.

That change eroded the informal inducements to testify. Langbein, supra, at 1066-71.

Meanwhile, the right against self-incrimination

became intertwined with a related doctrine from the

law of evidence, which barred the use of “confessions

secured by threats or promises.” Morgan, supra, at 18.

This rule, for reasons of reliability, excluded confessions that were “induced to any degree by any promises of leniency or threats.” Davies, supra, at 1021; see

Trial of Charles White, 17 Howell’s State Trials 1079,

1085 (1741) (a defendant’s confession may not be “extorted by threats, or drawn from him by promises”);

2 Matthew Hale, The History of the Pleas of the Crown

284 (1736 ed.) (a confession may be read against a defendant only if “he did it freely without any menace”).

This rule was categorical. Recognizing that “the

law cannot measure the force of the influence used, or

decide upon its effect upon the mind of the prisoner,”

it “therefore exclude[d] the declaration if any degree of

influence ha[d] been exerted.” Bram v. United States,

168 U.S. 532, 543 (1897) (quoting 3 William O. Russell,

Treatise on Crimes and Misdemeanors 478 (1896 ed.)).

Thus, “the slightest degree of influence exerted upon

the accused to speak gave rise to a presumption of compulsion that rendered the confession inadmissible.”

Benner, supra, at 65.

In response to these changes, “[t]he practice developed [in preliminary examinations] of taking only a

voluntary statement by the accused after cautioning

him as to his rights” and “of permitting the accused to

have counsel at this examination.” Kauper, supra, at

1233-34; see Chitty, supra, at 57 (“when the party is

brought before the magistrate, he is generally cautioned that he is not bound to accuse himself, and that

any admission may be produced against him at his

trial”). That practice migrated to America. See Wesley

MacNeil Oliver, Magistrates’ Examinations, Police Interrogations, and Miranda-Like Warnings in the Nineteenth Century, 81 Tul. L. Rev. 777, 790-92 (2007).

Ultimately, the pretrial examination of defendants under the Marian statute, even with the safeguards described above, came to be seen as anomalous—a statutory innovation that intruded on common

law freedoms. See 4 Blackstone, supra, at 296 (the

statute was “the first warrant given for the examination of a felon in the English law. For, at the common

law, nemo tenebatur prodere seipsum . . . .”); Chitty,

supra, at 56-57 (same). Americans inherited that understanding. See William Waller Hening, The New

Virginia Justice 147 (1795) (examinations under the

Marian statute “are repugnant to the common law”).

During all this time, the common law protection

from self-incrimination was never merely “an evidentiary rule for a criminal trial.” U.S. Br. 6. As shown

above, it directly prohibited the use of coercive interrogation methods during a defendant’s pretrial examination. Indeed, it shielded people who were not even

accused of a crime, much less on trial for it. The right

extended to witnesses who testified in someone else’s

criminal trial and even in civil proceedings. When

such witnesses invoked their rights, “the courts forbade other trial participants from asking them incriminating questions.” Alschuler, supra, at 2659. Once

again, that principle held sway on both sides of the Atlantic. See, e.g., Wilkes v. Wood, 98 Eng. Rep. 489, 495

(C.P. 1763) (witness in trespass suit was “not bound to

answer to any matter which may tend to accuse himself”); Marbury v. Madison, 5 U.S. 137, 144 (1803) (witness in mandamus suit was not “obliged to state any

thing which would criminate himself”); United States

v. Burr, 25 F. Cas. 38, 41 (C.C.D. Va. 1807) (witness in

criminal prosecution was not “compellable to accuse

himself”); see also 3 Blackstone, supra, at 364 (1766

ed.) (prospective juror could not be forced to answer

question that would “make him either forswear or accuse himself”).

At the Framing, therefore, the right against selfincrimination was both firmly established and much

more than a rule of evidence: it was a direct limit on

how government officials questioned potential offenders in their custody. Its primary function was to prevent the use of improper methods of interrogation to

secure confessions before trial—physical compulsion,

the use of oaths, and, eventually, inducements or

threats. In other words, the right against self-incrimination prohibited pretrial interrogation under conditions that were regarded as inherently coercive.

B. Reception of the Right in America

“When the Revolution began, colonies and mother

country differed little, if at all, on the right against

self-incrimination.” Levy, supra, at 404. In America,

as in England, the right developed as a restraint on

interrogation practices that were understood as intrinsically coercive. And as in England, it first flourished

in high-profile controversies of political significance

before spreading to routine criminal prosecutions. To

the Framers, this right represented a bulwark of individual liberty secured by the common law, which they

sought to preserve from future innovations that would

undermine its safeguards. Those safeguards, moreover, focused on barring coercive methods of securing

evidence from potential offenders, not simply on excluding improperly gained evidence from trial.

English colonial settlement of North America took

place at a time “when opposition to the ex-officio oath

of the ecclesiastical courts was most pronounced,” and

when “the insistence upon the privilege against selfincrimination in the courts of common law had begun

to have decided effect.” R. Carter Pittman, Colonial

and Constitutional History of the Privilege Against

Self-Incrimination in America, 21 Va. L. Rev. 763, 769

(1934-1935). Despite their diversity, all the colonies

“proclaimed an intention in principle to provide criminal justice in conformity with the laws of England,”

Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086, 1091 (1994), and

royal charters provided that colonists were to enjoy all

the privileges of Englishmen, Pittman, supra, at 766.

American criminal procedure thus mirrored the

English model. It included pretrial examinations under the Marian committal statute, as well as the grand

jury and “other palladia of English liberties,” Moglen,

supra, at 1104, that confined the use of such examinations.

As in England, structural incentives encouraged

arrestees to respond to the accusations against them

during pretrial examinations. Id. at 1089. But “the

American records also disclose a strong array of beliefs

concerning the inappropriateness of physical and spiritual coercion to secure evidence of crime.” Id. at 1104.

Over time, “the history of preliminary examination follows a course parallel to that” in England. Kauper,

supra, at 1235. “The establishment of the rule against

self-incrimination” in England, “resulting in abolition

of the practice of interrogating the accused, had the

same effect in the American colonies.” Id. at 1236.

From the beginning, Americans were averse to

conditions of interrogation that they viewed as inherently coercive—a sentiment reflected in limits on pretrial questioning.

The 1641 Massachusetts Body of Liberties, a precursor to later bills of rights, “provided a rudimentary

guarantee against compulsory self-incrimination.”

Benner, supra, at 86. Prohibiting the use of physical

coercion to obtain confessions, it dictated that “[n]o

man shall be forced by torture to confess any crime

against himself.” Mass. Body of Liberties, art. 45

(1641) (spelling modernized).

Americans also agreed that forcing suspects to answer questions about themselves under oath was unduly coercive. Indeed, “the ex officio oath . . . was more

uniformly reprehended than in England,” likely due to

colonial Americans’ particular religious sensibilities.

Moglen, supra, at 1100-01. “Hence the great codes of

Congregationalist New England specifically limited

the use and wording of oaths to prevent the use of spiritual coercion.” Id. at 1101 (footnote omitted).

Together, these prohibitions on physical and spiritual coercion “afforded the colonists complete protection against compulsion, either by torture or by an

oath, to confess their own delinquency.” Pittman, supra, at 776.

That protection was not limited to trials. From an

early date, it shielded arrestees who were brought before magistrates for their preliminary examinations.

In 1642, the governor of Massachusetts inquired of

several ministers “[h]ow far a magistrate may extract

a confession from a delinquent, to accuse himself of a

capital crime, seeing nemo tenetur prodere seipsum.”

William Bradford, Of Plymouth Plantation 1620–1647,

at 407 (Samuel E. Morison ed., 1952) (1651). The ministers agreed that no oath could be employed. As one

wrote, a magistrate could use “force of argument”

against a defendant “to draw him to an acknowledgment of the truth,” but “may not extract a confession

of a capital crime from a suspected person by any

violent means, whether it be by an oath imposed, or by

any punishment inflicted or threatened to be inflicted,

for so he may draw forth an acknowledgment of a

crime from a fearful innocent.” Id.; see Pittman, supra,

at 777-79; Alschuler, supra, at 2650.

Just like in England, therefore, the burgeoning

protection from self-incrimination directly restrained

interrogation practices. Indeed, numerous colonial

legislatures declared that authorities could not use coercive modes of interrogation—primarily questioning

under oath—to force people to accuse themselves. This

protection was not limited to a person’s own criminal

trial, but applied to any sworn questioning. Thus, in

1677, Virginia’s legislature resolved that compelling

individuals to answer incriminating questions under

oath was contrary to common law rights: “the law has

provided that a person summoned as a witness against

another, ought to answer upon oath, but no law can

compel a man to swear against himself in any matter

wherein he is liable to corporal punishment.” 2 Statutes at Large: Being a Collection of All the Laws of Virginia 422 (William W. Hening ed., 1823) (spelling modernized); see Alschuler, supra, at 2651. Massachusetts

likewise provided in 1692 that “any person duly summoned” to give evidence concerning a violation of the

law must answer questions on pain of penalty, “other

than the party himself.” Pittman, supra, at 782 n.30.

Connecticut in 1711 similarly prescribed that a witness must testify under oath only “so far as it concerns

any other person besides himself.” Id. at 781 (spelling

modernized).

The right against self-incrimination became further entrenched throughout the colonies in the eighteenth century, due to the growth of the legal profession

and the greater availability of English treatises. Benner, supra, at 87. And it continued to be understood

as a protection extending well beyond the trial phase

of a prosecution. In 1754, for instance, the Massachusetts legislature passed an excise bill compelling residents to disclose to tax collectors, under oath, the

amounts they spent on liquor. Denounced by pamphleteers, the bill was “thought to be a menace to freedom . . . because of its incriminating oath,” Levy, supra, at 386, which threatened “an essential Part of our

Constitution, that no Man is held to convict himself in

any Affair whereof he is accus’d,” id. (quoting pamphlet). Vetoing the bill, the governor called it a violation of “natural Rights.” Id. As those sentiments reflect, the right against self-incrimination was understood to be violated when an incriminating statement

was compelled through a coercive process—not merely

when that statement was later admitted in court.

II. The Framers Adopted the SelfIncrimination Clause to Prevent

Innovations that Would Undermine the

Common Law’s Protection from Coercive

Interrogation Practices.

The right against self-incrimination gained new

prominence amid the “explosion of constitutional polemic in British North America after 1760.” Moglen,

supra, at 1111. Insisting on their rights as Englishmen in response to affronts by royal authorities, including the use of inquisitorial tactics to obtain criminal confessions, Americans lauded a “closely interwoven” set of rights they believed “intrinsic to the common law tradition, unmodifiable by an increasingly

sovereign British Parliament.” Id. at 1111-12. Their

campaign enshrined the right against self-incrimination as a fundamental safeguard from arbitrary interference with personal liberty. Later, the Framers

adopted the Fifth Amendment to prevent legislative

incursions on that safeguard.

A. The American colonists “were well educated as

to their rights as Englishmen,” Pittman, supra, at 769,

and they viewed the common law as “protect[ing] security and property because it provided liberty,”

Moglen, supra, at 1113. Seeking “equality of treatment with the King’s English subjects,” Americans essentially “claimed a constitutional right to the common

law.” Id.

First and foremost, “Americans exalted the jury

and all the common law rules and maxims ancillary to

its function,” id. at 1112, including protection from

self-incrimination and other safeguards that ensured

an accusatory system of justice. As the Continental

Congress explained to its Quebec neighbors after Britain resolved to withhold common law protections from

that territory, the right to jury trial ensured “that neither life, liberty nor property, can be taken from the

possessor, until twelve of his unexceptionable countrymen and peers” passed sentence against him “upon a

fair trial, and full enquiry, face to face, in open Court.”

To the Inhabitants of the Province of Quebec (Oct.

1774), in 1 Journals of the Continental Congress 107

(1904). Growing reverence for the jury heightened

Americans’ disdain for inquisitorial tactics that coerced confessions, thereby “short-circuit[ing] the accusatory role of the community” and depriving defendants of meaningful jury trials. Moglen, supra, at 1112.

Moreover, “American liberty seemed increasingly

threatened by the same forces that earlier generations

of Englishmen had resisted.” Id. at 1113. Conflict

swirled around attempts to extort confessions through

the use of “prerogative” courts, where, “at the mere

will of the royal Governor, an accused was called before the Governor and his council” and subjected to interrogation that was “inquisitional and ofttimes overbearing.” Pittman, supra, at 783-84. As with modern

police interrogation, the goal was to “procure confessions upon which . . . convictions of the delinquents

could be secured before a jury.” Id. at 784.

Resisting these tactics, Americans sought direct

protection from coercive pretrial interrogation. As

early as the seventeenth century, Massachusetts residents objected in a pamphlet that the governor and

council would “fetch up persons” before them, “not to

receive their trial but only to be examined there, and

so remitted to an inferior court to be farther proceeded

against.” The Revolution in New-England Justified 57

(1773 ed.) (1691) (spelling modernized). These examinations “were unreasonably strict, and rigorous and

very unduly ensnaring to plain unexperienced men.”

Id.

In Pennsylvania, printer William Bradford was

summoned before the governor, who sought his confession for publishing a controversial work. Refusing to

answer, Bradford declared: “[I]f anything be laid to my

charge, let me know my accusers. I am not bound to

accuse myself.” Pittman, supra, at 785; see also id. at

785-86 (describing similar incident in Massachusetts).

In Virginia, the lieutenant governor was accused

of issuing orders “to examine witnesses against particular men ex parte,” and “if witnesses do not swear up

to what is expected, they are tampered with.” Charges

Against Governor Nicholson, reprinted in 3 Va. Mag.

Hist. & Bio., Apr. 1896, at 373, 378. “On the very eve

of the Revolution,” Virginia’s governor “was hailing

those accused of forging paper currency before himself

and his Council and was there making examinations

in a very inquisitorial manner.” Pittman, supra, at

786. The House of Burgesses—which included many

members who would soon safeguard protection from

self-incrimination in America’s first declaration of

rights—made “violent protests” against this departure

from the “usual mode” of criminal examination. Id.

B. As the American dispute with Britain reached

a crescendo, a central grievance was the expanded use

of prerogative courts, particularly vice-admiralty

courts, to enforce revenue measures against which the

colonists protested. See id. at 786-87. Without juries

or the accusatory requirements of the common law,

vice-admiralty procedures were seen as “tyrannical

and unconstitutional innovations,” lacking the safeguards that “Englishmen had a right to expect.”

Moglen, supra, at 1115-16. Thus, amid resistance to

the Stamp Act, residents of Providence explained that

“we look upon our natural Rights to be diminished in

the same Proportion, as the Powers of that Court are

extended.” Id. at 1116. Boston residents proclaimed

that, after taxation without representation, “the Jurisdiction of the Admiralty” was “our greatest Grievance.”

Id. at 1116 n.108. One galvanizing incident was the

“smuggling prosecution of John Hancock in the Boston

vice-admiralty court, news of which was disseminated

widely among the colonies” and “described as an inquisitorial ‘fishing’ procedure,” Davies, supra, at 1001

n.77, marked by “tactics of examining men secretly

and by ‘odious’ interrogatories,” Levy, supra, at 398.

In their resistance to vice-admiralty and its inquisitorial methods, Americans “began to adopt rhetoric concerning the unconstitutionality of prerogative

justice” first employed the previous century in England. Moglen, supra, at 1116. “While the Court of

High Commission had been the primary target in the

earlier era, Admiralty became the focus of hostility in

America, primarily because of its alleged employment

of the ex officio oath for coercive purposes.” Id. Before

long, “[t]he ex officio oath and the abuses of Star

Chamber procedure again became staples of the

pamphlet literature.” Id. The controversy thus “reopened old questions that had been settled,” calling for

“a reaffirmation of th[e] privilege against compulsory

self-incrimination.” Pittman, supra, at 787.

C. These trends culminated in the constitutions

and declarations of rights the states adopted after separating from Britain, which included “various restatements of the traditional nemo tenetur maxim.”

Moglen, supra, at 1115. In these documents, Americans aimed to safeguard the full scope of this wellknown common law right.

Virginia’s widely emulated Declaration of Rights

protected a cluster of safeguards later embodied in the

Fifth and Sixth Amendments, including a prohibition

on compelled self-incrimination. See Va. Decl. of

Rights § 8 (1776) (“nor can he be compelled to give evidence against himself”). Because this protection attached “in all capital or criminal prosecutions,” id., it

covered all custodial interrogations. Under common

law, “a ‘prosecution’ began when there was an arrest.”

Davies, supra, at 1010 n.123; see Hale, supra, at 72

(describing the “arrests or apprehending” of suspects

as “the first instance of their prosecution”). That was

the same point at which custodial interrogation could

begin. Thus, unlike today, there was no custodial interrogation before the initiation of a prosecution.

The Massachusetts Declaration of Rights, “drafted

by John Adams, one of the most learned common law

lawyers of his day,” overtly linked the “right to be free

at all times from compulsory self-incrimination” with

the right “not to be subjected to interrogation prior to

a substantiated formal charge.” Benner, supra, at 8788; see Mass. Const. of 1780, art. XII (“No subject shall

be held to answer for any crimes or offence, until the

same is fully and plainly, substantially, and formally,

described to him; or be compelled to accuse, or furnish

evidence against himself.”). Reflecting the traditional

breadth of the right against self-incrimination, this

protection was an affirmative limit on what officials

could do when seeking evidence of a crime.

D. These constitutional provisions “were intended

conservatively, protecting against . . . possible innovations by a tyrannical government.” Moglen, supra, at

1089. Later, when a new and more powerful federal

government was proposed by the Constitutional Convention, some statesmen perceived a threat of such innovations reemerging.

Patrick Henry warned in Virginia’s ratifying convention that “Congress may introduce the practice of

the civil law, in preference to that of the common law,”

authorizing its officials to “extort confession by torture.” 3 The Debates in the Several State Conventions

on the Adoption of the Federal Constitution 447-48

(Jonathan Elliot ed., 1836). In Massachusetts, one delegate stressed that “[t]here is nothing to prevent Congress from passing laws which shall compel a man,

who is accused or suspected of a crime, to furnish evidence against himself.” 2 id. at 111. A New York delegate similarly urged that Congress might establish

criminal proceedings at odds with the common law, invoking the Star Chamber. 2 id. at 400.

In response, the Framers of the Bill of Rights safeguarded the right against self-incrimination, elevating

it from a traditional common law protection to a fundamental constitutional guarantee. As the history

above underscores, the Framers were not concerned

only with rules of evidence governing trials. Instead,

they were “focused upon improper methods of gaining

information from criminal suspects,” and specifically

on prohibiting “forms of coercive interrogation.”

Alschuler, supra, at 2651-52.

E. The text of the Fifth Amendment reflects the

Framers’ broad goals. Nothing about it restricts the

scope of the Self-Incrimination Clause to the work of

“prosecutors and courts.” Pet. Br. 17.

The Amendment provides that no person shall “be

compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. Because this language was “but an affirmance of a common law privilege,” 3 Joseph Story, Commentaries on the Constitution § 1782, at 660 (1833), the Framers “were content

simply to use a phrase sufficient to invoke the settled

common-law right and place it off limits to legislative

change,” Davies, supra, at 1007. In other words, the

compact wording of the Clause was a “gesture in favor

of a self-evident truth needing no further explanation,”

revealing “an intent to incorporate into the Constitution the whole scope of the common-law right.” Levy,

supra, at 430, 423.

The Clause’s applicability beyond trial is clear

from its placement alongside other rights that govern

when and how the state may initiate action depriving

individuals of legal entitlements: the Takings Clause,

the Due Process Clause, the Grand Jury Clause, the

Double Jeopardy Clause. The Framers carefully attended to the location of the Self-Incrimination Clause,

see id. at 423-27, and if the Clause were concerned only

with trial procedure, it would have been grouped with

similar rights in the Sixth Amendment. Its inclusion

in the Fifth Amendment “proves that the [Framers]

did not intend to restrict that clause . . . only to [a person’s] trial.” Id. at 427.

Accordingly, the Clause’s text is phrased “broadly

enough to apply . . . to any phase of the proceedings.”

Id. The government claims that a person is a witness

against himself in a criminal case “only when his compelled testimony is admitted against him at trial.”

U.S. Br. 7. But neither of the government’s textual

hooks for this claim—the words “witness” and “case”—

supports that limitation. Thus, even though a violation of the Clause may not be complete until the statement compelled from a person is actually used against

him, Chavez v. Martinez, 538 U.S. 760 (2003), there is

no textual basis for equating that requirement with

the admission of testimony in a courtroom.

A “witness” is not limited to someone whose testimony is admitted in a judicial proceeding. As this

Court has explained, a person becomes a “witness

against himself” when making “incriminating communications . . . that are ‘testimonial’ in character,”

United States v. Hubbell, 530 U.S. 27, 34 (2000), which

requires only “assertions of fact or belief,” id. at 35. In

ordinary usage, the word “witness” includes people

who relay their knowledge of an incident to someone

else, regardless of the location or forum. E.g., Ohio v.

Clark, 576 U.S. 237, 243 (2015) (referring to “statements by a witness during police questioning at the

station house”). The same was true at the Framing.

Indeed, the word “witness” was consistently used to

describe people who gave information at Marian preliminary examinations—the antecedent to modern

custodial police interrogations. See Hale, supra, at 52;

2 William Hawkins, A Treatise of the Pleas of the

Crown 430 (1762 ed.); 1 Richard Burn, The Justice of

the Peace and Parish Officer 760-61 (1810 ed.); James

Parker, Conductor Generalis: or the Office, Duty and

Authority of Justices of the Peace 174 (1764).

Likewise, the word “case” does not limit the SelfIncrimination Clause to the admission of evidence “at

trial.” U.S. Br. 7. Notably, the Sixth and Seventh

Amendments both use the word “trial,” but the Fifth

Amendment conspicuously uses the broader word

“case,” which is general enough to refer simply to a

legal matter or question. See Samuel Johnson, A Dictionary of the English Language (6th ed. 1785) (defining “case” among other things as a “[q]uestion relating

to particular persons or things”); Counselman v. Hitchcock, 142 U.S. 547, 562 (1892) (construing the Clause

as “limited to criminal matters” but covering any situation in which a person is “acting as a witness in any

investigation”).

When a person “is first subjected to police interrogation while in custody . . . . [i]t is at this point that

our adversary system of criminal proceedings commences,” Miranda, 384 U.S. at 477, and the process “is

quite as much an official proceeding as the early English preliminary hearing before a magistrate,” Morgan, supra, at 28. Significantly, the other use of the

word “case” in the Fifth Amendment—in the Grand

Jury Clause—likewise relates to a pre-trial proceeding. And another constitutional provision makes

members of Congress, with certain exceptions, “privileged from Arrest” “in all Cases,” U.S. Const. art. I, § 6,

again referring to the initiation of a criminal matter,

not to courtroom proceedings or a trial. Indeed, it

seems that the only reason the phrase “in any criminal

case” was added to the Clause was to make clear that

it did not protect against compelled exposure to civil

liability. See Hubbell, 530 U.S. at 53 n.3 (Thomas, J.,

concurring); Levy, supra, at 423-26.

Finally, for the Framers there was no in-custody

interrogation without a “case.” Preliminary examination by a magistrate, which by definition was a judicial

proceeding, was the only form of custodial questioning

before trial that the common law permitted. Modern

rules of law enforcement, by contrast, permit detention

and interrogation by government officers before the filing of criminal charges—and hence before the beginning of court proceedings. That is precisely the type of

deviation from historic common law safeguards that

the Framers adopted the Self-Incrimination Clause to

protect against. Whatever innovations in criminal

procedure society chooses to embrace, the Fifth

Amendment, like the Fourth, is meant to provide at

least the level of protection against government power

that existed when the Amendment was ratified. Kyllo

v. United States, 533 U.S. 27, 34 (2001).

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

April 6, 2022

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.