334
Scalia, J., dissenting
phen, 1 History of the Criminal Law of England 440 (1883).
See also J. Beattie, Crime and the Courts in England: 1660- 1800, pp. 348-349 (1986) ("And the assumption was clear that if the case against him was false the prisoner ought to say so and suggest why, and that if he did not speak that could only be because he was unable to deny the truth of the evidence"); 2 W. Hawkins, Pleas of the Crown, ch. 39, § 2 (8th ed. 1824) (confirming that defendants were expected to speak in their own defense at trial). Though it is clear that adverse inference from silence was permitted, I have been unable to find any case adverting to that inference in upholding a conviction—which suggests that defendants rarely thought it in their interest to remain silent. See Langbein, supra, at 95-96.
No one, however, seemed to think this system inconsistent with the principle of nemo tenetur seipsum prodere. And there is no indication whatever that criminal procedure in America made an abrupt about-face when this principle was ratified as a fundamental right in the Fifth Amendment and its state-constitution analogues. See Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in The Privilege Against Self-Incrimination, supra, at 139-140. Justices of the peace continued pretrial questioning of suspects, whose silence continued to be introduced against them at trial. See, e. g., Fourth Report of the Commissioners on Practice and Pleadings in New York— Code of Criminal Procedure xxviii (1849); 1 Complete Works of Edward Livingston on Criminal Jurisprudence 356 (1873). If any objection was raised to the pretrial procedure, it was on the purely statutory ground that the Marian Committal Statute had no force in the new Republic. See, e. g., W. Hening, The Virginia Justice: Comprising the Office and Authority of a Justice of the Peace 285 (4th ed. 1825). And defendants continued to speak at their trials until the assistance of counsel became more common, which occurred gradually
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