The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Grand Juries, Double Jeopardy, and Self-Incrimination

Changes in the Self-Incrimination Doctrine


The 5th Amendment’s self-incrimination clause had a very different effect on court proceedings in the early republic than the effect it has today. At the time of America’s Founding, a defendant was frequently questioned by a magistrate before the trial began, and without first informing the suspect that he had a “right to remain silent.” And it was also not uncommon for a suspect to defend himself in court. Most juries, therefore, heard statements that had been made by the defendant, even if he chose not to testify under oath. Today, when a defendant opts to “take the Fifth,” the jury is not likely to hear a word from him unless the police have seized evidence of conversations or private papers pursuant to a warrant.

But even early cases recognized that confessions that took place prior to a trial should be rejected if there was a possibility that they were coerced. In one early Pennsylvania case, Commonwealth v. Dillon (1792), the Court had to consider the admissibility of a confession extracted from a boy of twelve. The boy had been accused of arson, but he had initially denied the charge. For two days he was confined to an uncomfortable cell while successive visitors urged him to confess his crime. They told him that if he did confess his crime, then he would immediately be provided with food and other comforts, his friends would stand by him, and any jury would probably show compassion and pardon him. He was also told that he would be without hope of mercy if he was convicted without a confession, and they showed him the “dungeon” that he could expect to inhabit.

After two days of this treatment, the boy confessed. The court ruled that if there was even a chance that the confession was coerced (especially in the case of a child) then it must be ruled inadmissible. The boy was acquitted in spite of his confession and some circumstantial evidence tying him to the crime.