Aristotle's Paradox and the Self-Incrimination Puzzle

Abstract

conception of compulsion is conceptually unflawed-S is when it is impossible for S to do otherwise' 2 0-the mechanism Wigmore used to implement this conception seems too narrow to explain even the historic function of the self-incrimination clause. If this assessment is accurate, one would expect courts to reject the test for coercion. The courts began to do this in the 1930s and 1940s as they moved to embrace a normative test. C. WRONGFUL EXTERNAL FORCES Not long after Wigmore published his treatise, courts began to shift the focus from the suspect's will to the police conduct.' 2 ' By the mid-1940's, disciplining of state law enforcement officers became a principal purpose of the . . .confessions rule.' 12 2 The rationale for this change was never clearly expressed. One explanation is that some police conduct should be prohibited simply 119 See Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 443 (1987). To be fair to Wigmore, he argued that the rule prohibiting admission of confessions was independent of the fifth amendment self-incrimination bar against courtroom testimony. 4 J. WIGMORE, A TREATISE ON EVIDENCE, at § 2266. The rule prohibiting admission of confessions, he argued, was a evidentiary rule; the fifth amendment self-incrimination bar against courtroom testimony, a constitutional privilege. Id. Today, however, the two doctrines have merged. The fifth amendment prohibits self-incriminating testimony; it would necessarily also bar admission of self-incriminating statements. Whatever formal distinctions might exist in raising these claims, see id., the substance of each claim is that the speaker was forced against his will to give incriminating testimony. Whether one calls the testimony compelled or involuntary seems irrelevant. Thus, to argue, as Wigmore does, that some confessions would not be and vice-versa, id., seems quite bizarre today. 120 See WIGMORE ON EVIDENCE, supra note 12, at § 824. Harry Frankfurt articulates essentially the same standard: S acts unfreely only when S's inclination to avoid the undesirable consequence he faces is irresistible; it is impossible for him to bring himself to accept that consequence. H. FRANKFURT, supra note 18, at 49. 121 Miranda v. Arizona, 384 U.S. 436, 507 (1966) (Harlan, J., dissenting) (noting the Court's initial emphasis on reliability which was later supplemented by concern over the legality and fairness of the police practices in an accusatorial system of law enforcement.). 122 Paulsen, The Fourteenth Amendment and the Third Degree, 6 STAN. L. REV. 411, 419 (1954). 1991]