Legal History Commons^™

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

Scholarly Works

Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …

The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow Kleinhaus

Suzanne Darrow Kleinhaus

No abstract provided.

The New Frontier Of Constitutional Confession Law - The International Arena: Exploring The Admissibility Of Confessions Taken By U.S. Investigators From Non-Americans Abroad, Mark A. Godsey

Faculty Articles and Other Publications

This Article is part two in an ongoing series. Part I, published at 51 DUKE L. J. 1703 (2002), argued that Miranda warnings should not be strictly required when U.S. agents interrogate non-U.S. citizens abroad. This Article picks up where the first left off, and asks the question: "In the absence of Miranda, do any provisions in the Bill of Rights restrict the ability of U.S. agents to obtain confessions from non-Americans abroad?"

The Article begins by examining the back up or default rules to Miranda in the domestic setting. These rules are the "due process involuntary confession rule," which …

The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow-Kleinhaus

Scholarly Works

No abstract provided.

Reconceiving The Right To Present Witnesses, Richard A. Nagareda

Michigan Law Review

Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Michigan Law Review

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

The Historical Origins Of The Privilege Against Self-Incrimination At Common Law, John H. Langbein

Michigan Law Review

This essay explains that the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel.

Part I of this essay discusses the several attributes of early modem criminal procedure that combined, until the end of the eighteenth century, to prevent the development of the common law privilege. Part II explains how prior scholarship went astray in locating the common law privilege against …

A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar

Book Chapters

If the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer are any indication, Miranda v. Arizona has evoked much anger and spread much sorrow among judges, lawyers and professors. In the months and years ahead, such reaction is likely to be translated into microscopic analyses and relentless, probing criticism of the majority opinion. During this period of agonizing appraisal and reappraisal, I think it important that various assumptions and assertions in the dissenting opinions do not escape attention.

Discovery Of Penalites, William Hamilton Bryson

Law Faculty Publications

The purpose of this essay is to discuss some aspects of the scope of the privilege against self-incrimination. It will consider first what can not be and then what can be discovered by the common law of England before 1776, when the first republican constitution of Virginia was promulgated. Finally, the developments in Virginia and federal practice will be dealt with.

The Background Of The Fifth Amendment In English Law: A Study Of Its Historical Implications, John A. Kemp

William & Mary Law Review

No abstract provided.

Self-Incrimination--Historical Background Of The Doctrine, Wendell S. Williams

Kentucky Law Journal

No abstract provided.