Self-incrimination

No person ... shall be compelled in any criminal case to be a witness against himself ...

The year 2007 marked the 350th anniversary of the death of John Lilburne, a remarkable Englishman ... When Lilburne was brought before the court of Star Chamber he refused to take the oath. "It is this trial that has been cited by constitutional jurists and scholars in the United States of America as being the historical foundation of the Fifth Amendment to the United States Constitution. It is also cited within the 1966 majority opinion of Miranda v Arizona by the U.S. Supreme Court."

Congress [amended] Section 1001 to cover false statements made in any matter within the jurisdiction of any federal agency ... [Numerous federal courts] recognized that the statute came dangerously close to infringing upon a person's Fifth Amendment right to not incriminate himself. In a 1998 case, Brogan v. U.S., however, the U.S. Supreme Court put an end to this ... Seven justices held that Congress never intended any such exception to exist, and the statute did not violate the Fifth Amendment because people should realize that they have the right to remain silent.

[Justice Anthony] Kennedy and his four colleagues rejected the argument that giving one's name can be an act of self-incrimination. Obviously, if the person questioned is wanted for another crime, then being forced to identify himself does violate the right against self-incrimination. Kennedy dismissed this objection all too casually: "Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances." But those unusual circumstances involved persons. I guess they are insignificant too.

The Smith Act [of June 1940] bore the somewhat misleading official title of Alien Registration Act ... The Voorhis Act, passed [in October 1940], required registration with the Attorney General of all organizations subject to "foreign control," if involved in civilian-military activities or if advocating the overthrow of the government. (the previous Foreign Agents Registration Act applied to individuals.) The fact that the Voorhis Act could require members of the radical organizations to incriminate themselves under the Smith Act did not faze Congress.

What would removing such a protection against self-incrimination look like? History provides an answer ... In the late 1530s the Protestant John Lambert was burnt alive for heresy. During his trial Lambert became the first known Englishman to proclaim it was illegal under God and the common law to compel a man to accuse himself. Courts of the day required a defendant to answer a barrage of questions based on evidence gleaned from witnesses or informants without informing him of the charges ... The interrogation aimed at trapping a defendant into a confession ... Silence was deemed a confession.

[Lilburne] was the first to challenge ... the prosecution tactic of extracting confessions until defendants incriminated themselves ... [H]e was betrayed by one of his collaborators, arrested, and imprisoned in the Gatehouse. His case came before the Star Chamber, which was separate from the common law courts, with proceedings based on interrogating defendants. Those who incriminated themselves were declared guilty and imprisoned. "It was a court of politicians enforcing a policy, not a court of judges administering a law," noted constitutional historian F.W. Maitland.