Doctrinal Evolution and the Right Against Self-Incrimination

The Fifth Amendment’s right against self-incrimination is one of the most well-known constitutional protections as it is often referenced in movies, television shows, and in the news. Despite this wide-spread awareness of the right against self-incrimination, the Federal Circuit Courts remain split over whether the right attaches before or during trial. The specific point of contention is when a “criminal case” commences. This article examines the history of the right against self-incrimination beginning with its common-law origins in Great Britain.

The evolution of the right against self-incrimination is explored up to the present-day circuit split, and the cases involved in the split are discussed in detail. Finally, this article argues for a broad application of the right against self-incrimination.