Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation - a view that countless repetitions of the Miranda warnings have impressed upon the public - asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward her decision not to speak. In the Supreme Court's words, "[T]he privilege is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will.' " He must have a " 'free choice to admit, to deny, or to refuse to answer.' " The Fifth Amendment dictates an "accusatorial system," one requiring "the government in its contest with the individual to shoulder the entire load. " On this view, the concept of waiving the privilege seems unproblematic; one might waive a right to remain silent for many plausible reasons.
This article argues that as embodied in the United States Constitution, the privilege against self-incrimination was not intended to afford defendants a right to remain silent or to refuse to respond to incriminating questions. Its purpose was to outlaw torture and other improper methods of interrogation .
Albert W. Alschuler,
A Peculiar Privilege in Historical Perspective: The Right to Remain Silent,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol94/iss8/9