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Bluebook 21st ed.

Steven Penney, What's Wrong with Self-Incrimination - The Wayward Path of
Self-Incrimination Law in the Post-Charter Era - Part I: Justifications for Rules
Preventing Self-Incrimination, 48 CRIM. L.Q. 249 (2003).

ALWD 7th ed.

Steven Penney, What's Wrong with Self-Incrimination - The Wayward Path of
Self-Incrimination Law in the Post-Charter Era - Part I: Justifications for Rules
Preventing Self-Incrimination, 48 Crim. L.Q. 249 (2003).

APA 7th ed.

Penney, S. (2003). What's wrong with self-incrimination the wayward path of
self-incrimination law in the post-charter era part i: justifications for rules
preventing self-incrimination. Criminal Law Quarterly, 48(2), 249-266.

Chicago 17th ed.

Steven Penney, "What's Wrong with Self-Incrimination - The Wayward Path of
Self-Incrimination Law in the Post-Charter Era - Part I: Justifications for Rules
Preventing Self-Incrimination," Criminal Law Quarterly 48, no. 2 (December 2003):
249-266

McGill Guide 9th ed.

Steven Penney, "What's Wrong with Self-Incrimination - The Wayward Path of
Self-Incrimination Law in the Post-Charter Era - Part I: Justifications for Rules
Preventing Self-Incrimination" (2003) 48:2 Crim LQ 249.

AGLC 4th ed.

Steven Penney, 'What's Wrong with Self-Incrimination - The Wayward Path of
Self-Incrimination Law in the Post-Charter Era - Part I: Justifications for Rules
Preventing Self-Incrimination' (2003) 48(2) Criminal Law Quarterly 249

MLA 9th ed.

Penney, Steven. "What's Wrong with Self-Incrimination - The Wayward Path of
Self-Incrimination Law in the Post-Charter Era - Part I: Justifications for Rules
Preventing Self-Incrimination." Criminal Law Quarterly, vol. 48, no. 2, December
2003, pp. 249-266. HeinOnline.

OSCOLA 4th ed.

Steven Penney, 'What's Wrong with Self-Incrimination - The Wayward Path of
Self-Incrimination Law in the Post-Charter Era - Part I: Justifications for Rules
Preventing Self-Incrimination' (2003) 48 Crim LQ 249 Please note:
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 What's Wrong with Self-Incrimination?
The Wayward Path of Self-Incrimination
Law in the Post-Charter Era
Part I:Justifications for Rules
Preventing Self-Incrimination
Steven Penney*

1. Introduction
Why does the law limit the state's ability to collect and use
self-incriminating evidence? What is wrong with permitting
authorities to induce criminal suspects to provide evidence that
may later be used against them at trial? This question has pre-
occupied jurists for generations. But Canadian courts have only
recently become engaged in significant normative theorizing on
the nature of self-incrimination. Most of this work has been
performed by the Supreme Court of Canada (the Court) in the
context of its interpretation of the Canadian Charter of Rights
and Freedoms1 and has resulted in a distinctly Canadian approach
to self-incrimination theory. The Court has also used the Charter
to bring concerns about self-incrimination to bear on aspects of
criminal procedure that were not previously thought to be part of
self-incrimination law.2 In short, the Court is well on its way to
developing a comprehensive, unified theory of self-incrimination
law governing the collection and use of self-incriminating
evidence at all stages of the criminal justice process.
* Associate Professor, Faculty of Law, University of New Brunswick.
1. Part I of the Constitution Act, 1982, being Schedule B to the CanadaAct 1982
(U.K.), 1982, c. 11.
2. See generally E. Ratushny, Self-incrimination in the CanadianCriminal Process
(Toronto: Carswell, 1979).
250 CriminalLaw Quarterly [Vol. 48

The central assumption of this theory is that criminal suspects

should, as a matter of principle, have a certain measure of
freedom to choose whether to provide self-incriminating evi-
dence to the state. I call this the "free choice" rationale. At times,
the Court has also been cognizant of the need to discourage
unwarranted invasions of privacy and cruel interrogation prac-
tices (the "abuse-prevention" rationale). It has also occasionally
recognized that rules protecting individuals from self-incrimination
may be needed to increase adjudicative accuracy (the "reliability"
rationale). But it has focused on the idea that suspects should
generally have an inherent, deontological right to silence in the
face of criminal accusations.
Unfortunately, the Court has not done a very good job of
explaining why this right should exist. It has not, in other words,
proffered a convincing answer to the question: "What is wrong
with self-incrimination?" I argue that there is in fact nothing
inherently wrong with compelling self-incrimination and that the
Court's preoccupation with preserving free choice has produced
a self-incrimination jurisprudence that too often elides the
legitimate interests at stake in the criminal justice process. The
reliability and abuse-prevention rationales often provide good,
pragmatic reasons to regulate the collection and use of self-
incriminating evidence. Neither rationale, however, justifies a
general right to silence. Put simply, there is nothing wrong with
denying criminal suspects the right to choose whether to respond
to criminal accusations, as long as the state has sufficient
grounds for suspicion, avoids cruel methods of inducing
cooperation, and ensures that compelled evidence is reasonably
reliable.
Applying this theoretical framework to contemporary doctrine
reveals that many of the rules limiting the collection or use of
self-incriminating evidence are justified; often, however, for
reasons that differ from those invoked by the Supreme Court.
But in other cases the Court's devotion to preserving free choice
has denied courts access to reliable evidence in defiance of
sound criminal justice policy. My proposal avoids this unfortu-
nate outcome. It also helps to resolve many of the most
contentious debates in self-incrimination doctrine, such as the
scope of the voluntary confession rule, the meaning of waiver in
2003] What's Wrong with Self-Incrimination? PartI

the context of the right to counsel, the acceptability of using of

undercover agents to elicit jailhouse confessions, the nature of
the immunity that should attach to compelled testimony, the
appropriateness of drawing an adverse inference from silence
before or during trial, and the admissibility of unconstitutionally
obtained, self-incriminating evidence. Discarding the free choice
approach does not always produce definitive answers. In some
cases we must still make difficult empirical and political
judgments. But by focusing exclusively on reliability and abuse-
prevention, we will increase the likelihood that these judgments
will be made transparently and coherently.
Part 2 of this article surveys the chief arguments justifying
legal protections against self-incrimination: the reliability,
abuse-prevention and free choice rationales. In theory, the
reliability and abuse-prevention rationales are uncontroversial.
Everyone agrees that we should attempt to maximize adjudica-
tive accuracy and deter abusive state conduct, at least to the
extent that these interests are compatible with one another. The
free choice rationale, in contrast, is controversial and perplexing.
Some contend that forcing suspects to provide evidence against
themselves produces undue psychological harm. I dispute this,
arguing that the harm associated with self-incrimination is mini-
mal, suffered only by the factually guilty, and amply justified by
the state's interest in obtaining reliable convictions. Others assert
that self-incrimination entails unwarranted invasions of privacy,
a concern that undergirds the Supreme Court of Canada's
endorsement of the so-called "case to meet" principle. I argue,
however, that while it makes sense to restrict the state's ability to
obtain self-incriminating evidence to protect privacy, this justi-
fies neither a general right to silence nor a specific rule insulating
suspects from practical compulsion until the prosecution has
established a prima facie case. There are simply too many
instances where the law rightly permits government to invade
suspects' privacy without meeting this onerous threshold.
In Part 3, I begin to apply this theoretical framework to
Canadian self-incrimination doctrine by examining what is
arguably the most important source of self-incriminating evidence
- police questioning. I critique the Supreme Court's juris-
prudence on the common law confession rule and s. 10 of the
 Criminal Law Quarterly [Vol. 48

Charter, concluding that both doctrines can be adjusted to pro-

vide greater protection against false confessions and abusive
interrogation techniques without unduly hampering efforts to
obtain reliable evidence of guilt.
Part 4 discusses the use of undercover agents to obtain self-
incriminating statements. I argue that the rule forbidding the
active elicitation of confessions from detainees relies wholly on
the free choice rationale and should therefore be discarded.
Part 5 confronts the court's controversial treatment of self-
incriminating evidence under s. 24(2) of the Charter. I argue that the
Court's "trial fairness" approach - which results in the near-auto-
matic exclusion of non-discoverable, self-incriminating evidence
- is grounded exclusively on the free choice rationale and should
therefore be abandoned. Abuse is considered within the "serious-
ness of the violation" category and reliability can be ensured by
other means. Self-incriminating evidence should therefore be treat-
ed just like any other type of unconstitutionally obtained evidence.
Part 6 deals with compelled communications - situations
where the law protects people who are obliged to provide com-
municative evidence to the state. I argue that the Supreme Court
was correct to give individuals testifying under compulsion a
limited form of derivative use immunity. But unlike the Court,
which bases its interpretation on the free choice rationale, I assert
that derivative use immunity is justified by the need to promote
truth-telling by non-accused witnesses. I also urge the Court to
refine the test for deciding whether such witnesses may resist
compulsion in order to better protect witnesses from inquisitorial
abuses. Another section of Part 6 examines the application of
self-incrimination principles to compelled, non-testimonial com-
munications. As this type of compulsion typically arises in the
regulatory context, I argue that it should rarely be necessary to
provide immunity to induce truth-telling or deter abuse. Finally
I contend that non-linguistic communicative evidence, such as
fingerprints, DNA profiles and blood alcohol readings, do not
raise self-incrimination concerns. Compelling such evidence
does not threaten reliability and concerns about abuse are better
addressed by search and seizure law.
Part 7 critiques the Court's free choice-based interpretation of s.
13 of the Charter. According to the Court, s. 13 prohibits the pros-
20031 What's Wrong with Self-Incrimination? Part I

ecution from incriminating defendants with their own testimony

from a previous trial for the same offence. I argue that this inter-
pretation is mandated by neither text nor policy and unjustifiably
reduces the likelihood of convicting the guilty. I then consider
whether defendants' previous testimony should be admissible to
impeach their credibility. Where such testimony was given in a
previous trial for the same offence, it should be admissible for
either incriminating or impeaching purposes. Where the testimony
derives from another proceeding the question is much more diffi-
cult. But I suggest that providing immunity against impeaching
uses is probably not necessary to promote truth-telling.
Part 8 takes up the question of whether triers of fact should
sometimes be permitted to infer guilt from defendants' silence. It
considers the Supreme Court's prohibition on adverse inferences
from defendants' failure to testify at trial. I argue that this rule is
justified by neither the reliability nor abuse-prevention rationales
and should thus be abandoned. In the next section, in contrast, I
assert that the rule prohibiting adverse inferences from pretrial
silence is justified to prevent both wrongful convictions and
abusive interrogations.
Part 9 concludes.
2. Justifications for Rules Preventing Self-Incrimination
(1) The Reliability Rationale
One reason to prevent self-incrimination is to enhance the
truth-seeking function of criminal trials and other legal proceed-
ings. Self-incriminating evidence can be untrustworthy, and we
fear that in some circumstances admitting it will lead to inaccu-
rate findings of fact. The reliability rationale justifies two types
of legal rules. The first attempts to prevent wrongful convictions.
Innocent suspects sometimes make self-incriminating state-
ments. Admitting such statements at trial may increase the
probability that they will be wrongfully convicted. We have
therefore developed rules that attempt to identify unreliable
inculpatory evidence and exclude it from trial. The voluntary
confession rule is the most obvious example. But reliability may
also help to explain and justify rules forbidding prosecutors from
compelling defendants' testimony at trial; requiring police to
inform suspects of their right to consult with counsel; and giving
 CriminalLaw Quarterly [Vol. 48

judges the discretion to exclude evidence when its prejudicial

effect would outweigh its probative value.
The purpose of the second type of reliability rule is to encourage
non-accused witnesses to tell the truth when they have been
compelled to provide evidence in some venue other than their
own criminal trials, such as the criminal trials of others or non-
criminal inquisitorial proceedings. Immunizing compelled
testimony from subsequent incriminating uses, for instance, may
induce witnesses to divulge truthful information that they would
not have provided in the absence of such immunity. The need to
encourage truth-telling may also justify rules excluding evidence
derived from compelled testimony as well as rules excluding
evidence compelled outside of formal legal proceedings. Each of
these rules prohibits prosecutors from using the fruits of com-
pulsion in order to remove the disincentive to truth-telling that
the potential for self-incrimination would otherwise present. This
type of anti-self-incrimination rule, in summary, helps to convict
the guilty and promote the truth-seeking agendas of administrative
proceedings and regulatory regimes.
In theory, the reliability rationale is uncontroversial. We all agree
that legal proceedings should attempt to determine the truth, at least
insofar as this pursuit does not conflict with competing objectives.
The guilty should be convicted, the innocent should be set free, the
cause of environmental disasters and industrial accidents should be
identified, and so on. Disputes about the rationale arise in applying
it to particular rules and facts. We may disagree, for example, about
whether a particular interrogation technique is apt to produce false
confessions or whether the non-compellability rule or the right to
be informed of counsel are needed to prevent wrongful convictions.
But we agree that there are situations where rules preventing
self-incrimination enhance the search for truth.
(2) The Abuse-Prevention Rationale
A second reason to protect people against self-incrimination is to
prevent abusive conduct by authorities investigating illegal activi-
ty. There are many types of abuse, but they can be grouped into two
categories.' The first consists of authorities' attempts to obtain self-
incriminating information from persons against whom there is no
objective basis for suspicion. As Ed Ratushny has put it, as a
3. See generally 8 Wigmore on Evidence (McNaughton rev. 1961), §2251 at p. 318.
2003] What's Wrong with Self-Incrimination? PartI

general rule a "person should not be put in jeopardy merely on basis

of suspicion or speculation".' Such "fishing expeditions" are abu-
sive if their negative impact on suspects' privacy and reputation
outweighs any countervailing social benefit. In making this deter-
mination, we consider the degree to which requiring persons to
answer questions about potentially illegal activity causes them
stress, stigma and similar harms and balance that against the state's
interest in detecting and punishing illegal conduct, regulating
economic activity, or some other legitimate objective.
The second category of abuses relates to the specific tech-
niques that authorities use to induce suspects to incriminate
themselves. Here we are concerned not with the way that offi-
cials select suspects for questioning, but rather with the way that
they persuade them to provide self-incriminating information.
Examples include interrogation by torture or psychological
oppression. Such practices are abusive if the physical and psy-
chological harm they cause outweighs the state's interest in
uncovering evidence of criminal activity. Some interrogation
practices causing undue harm may also be likely to induce unre-
liable confessions. But this is not necessarily the case. Even in
the case of confessions induced by torture, reliability may be
confirmed by the discovery of derivative evidence. Yet we pro-
hibit torture, and exclude the evidence it generates, even when it
produces reliable evidence. Torture is unacceptable, we believe,
because the harm it causes far exceeds its limited social benefits.'
As with the reliability rationale, the abuse-prevention rationale
is not theoretically controversial. All other things being equal,
we agree that people should not be called upon to produce
self-incriminating evidence unless there is good reason to
suspect them of criminal activity. And we all accept that some
4. Ratushny, supra, footnote 2, at p. 178. See also 8 Wigmore on Evidence
(McNaughton rev. 1961) §2251 at p. 317. Recent historical scholarship has
stressed that the privilege against self-incrimination developed largely in
response to this concern. See R. Helmholz, "The Privilege and the lus Commune:
The Middle Ages to the Seventh Century" in R. Helmholz et al., eds., The
Privilege Against Self-Incrimination: Its Origins and Development (Chicago:
University of Chicago Press, 1997), p. 17; A. Alschuler, "A Peculiar Privilege in
Historical Perspective" in Helmholz, idem, p. 181 at pp. 185-89.
5. In extreme cases there may be exceptions to this principle. See discussion infra,
Part 2, "Justifications for Rules Protecting against Self-Incrimination", footnote 87.
 Criminal Law Quarterly [Vol. 48

methods of inducing self-incrimination are unacceptably cruel.

Indeed, the Supreme Court of Canada has asserted that both
versions of the abuse-prevention rationale help to justify a variety
of rules limiting the use of self-incriminating evidence.
The tricky part comes in applying the rationale to specific
situations. There is controversy, for instance, over the accept-
ability of many of the psychological techniques that police use to
induce confessions. We also debate whether and in what circum-
stances self-incriminating evidence produced by abusive conduct
should be excluded at trial. But we do not dispute the underlying
policy of preventing abuse. There are instances where the state's
attempt to collect self-incriminating information comes at too
high a cost to individual liberty.
(3) The Free Choice Rationale
Such a consensus does not exist for the third set of justifications
for rules against self-incrimination. The "free choice" rationale
posits that criminal suspects should have the freedom to choose
whether to reveal incriminating information to the state. It asserts
that compelling self-incrimination is always morally problematic,
even where there are strong grounds for suspicion and the
methods used to induce self-incrimination do not involve any of
the techniques of physical or psychological coercion associated
with custodial police interrogation. The free choice rationale
would prohibit the compulsory examination of suspects, for
example, even if the only penalty for silence was the possibility
that a trier of fact might draw an inference of guilt and the exani-
nation was justified by reasonable and probable grounds, authorized
by a judicial officer, conducted in the presence of a defence lawyer
and judge, and subject to rules prohibiting oppressive questioning.7
The attraction of the free choice rationale is obvious. It is the
only theory that relates squarely to the idea of self-incrimination.
The reliability and abuse-prevention rationales justify rules
regulating the collection and use of both self-incriminating and
non-self-incriminating evidence. The free choice rationale, in
contrast, speaks directly to the state's ability to pressure suspects
6. See S. Penney, "The Continuing Evolution of the s. 7 Self-Incrimination
Principle: R. v. White" (1999), 24 C.R. (5th) 247.
7. Many commentators, in fact, have proposed similar schemes. See e.g. Paul
Kauper, "Judicial Examination of the Accused: A Remedy for the Third Degree"
2003] What's Wrong with Self-Incrimination? Part I

to produce evidence that may contribute to their conviction. It is

not surprising, therefore, that the Supreme Court of Canada has
invoked the rationale to justify both a general constitutional
"principle against self-incrimination" under s. 7 of the Charter'
as well as specific common law and constitutional rules protecting
criminal suspects against self-incrimination.9
It is not immediately apparent, however, why it is inherently
wrong to deny suspects the freedom to choose whether to
respond to criminal accusations. In our everyday lives, we
generally expect people to respond to allegations of mis-
conduct." Absent concerns about reliability or abusive methods,
why should we create an exception to this general moral princi-
ple for the gravest forms of misconduct? Most scholars who have
given this question sustained consideration have concluded that

(1932), 30 Mich L. Rev. 1224 at pp. 1232-33; E. Haines, "The Right to Remain
Silent: Two Views - View I" in R. Salhany and R. Carter, eds., Studies in
Canadian CriminalEvidence (Toronto: Butterworths, 1972), p. 321; A. Mewett,
"Law Enforcement and the Conflict of Values" (1970), 12 C.L.Q. 179 at pp. 190-
91; R. Pound, "Legal Interrogation of Persons Accused or Suspected of Crime"
(1934), 24 J. Crim. L. Criminology & Police Sci. 1014; W. Schaefer, The Suspect
and Society: Criminal Procedure and Converging Constitutional Doctrines
(Evanston, Ill.: Northwestern University Press, 1967), pp. 76-81; H. Friendly,
"The Fifth Amendment Tomorrow: The Case for Constitutional Change" (1968),
37 U. Cin. L. Rev. 671; M. Frankel, "From Private Rights Toward Public Justice"
(1976), 51 N.Y.U. L. Rev. 516 at p. 529; L. Weinreb, Denial ofJustice: Criminal
Process in the United States (New York: Free Press, 1977); Y. Kamisar, Police
Interrogationand Confessions:Essays in Law andPolicy (Ann Arbor: University
of Michigan Press, 1980), pp. 77-94; D. Dripps, "Foreword: Against Police
Interrogation - And the Privilege Against Self-Incrimination", [1988] J. Crim.
L. & Criminology 699; A. Amar and R. Lettow, "Fifth Amendment First
Principles: The Self-Incrimination Clause" (1994), 93 Mich. L. Rev. 857; I.
Dennis, "Instrumental Protection, Human Right or Functional Necessity?
Reassessing the Privilege Against Self-Incrimination" (1995), 54 Cambridge L.J.
342 at p. 376; S. Greer, "The Right to Silence: A Review of the Current Debate"
(1990), 53 Mod. L. Rev. 709. See also Ratushny, supra,footnote 2, at pp. 265-7 1.
8. See R. v. Hebert, [1990] 2 S.C.R. 151 at pp. 180-81, 57 C.C.C. (3d) 1, 77 C.R.
(3d) 145; R. v. Jones, [1994] 2 S.C.R. 229 at p. 253, 89 C.C.C. (3d) 353, 30 C.R.
(4th) 1, Lamer C.J.C. dissenting. See also Penney, supra, footnote 6.
9. See R. v. Whittle, [1994] 2 S.C.R. 914 at p. 932, 92 C.C.C. (3d) 11, 32 C.R. (4th) 1;
R. v. Noble, [1997] 1 S.C.R. 874 at paras. 73-74, 114 C.C.C. (3d) 385,6 C.R. (5th) 1.
10. See Friendly, supra, footnote 7, at p. 680; P. Brooks, Troubling Confessions:
Speaking Guilt in Law and Literature(Chicago: Chicago University Press, 2000),
p. 14.
 Criminal Law Quarterly [Vol. 48

we should not." Nevertheless, the notion that criminal suspects

have an intrinsic, deontological right to silence persists, and
there have been sporadic attempts to justify it by reference to a
variety of normative theories. These theories come in two
flavours. The first focuses on the incriminating character of the
compelled communications; the second, on the fact that such
communications often reveal especially private information.
(a) Free Choice and Self-Preservation
One argument is that compelling suspects to provide incrimi-
nating information is unacceptable because it contradicts their
instinct for self-preservation. Some medieval and early modem
jurists argued, for example, that individuals who committed
crimes were morally entitled to resist detection and punishment. 2
Because perjury is a mortal sin, compulsion forced defendants to
choose between earthly punishment and divine retribution.' 3
Modem iterations of this argument discount the influence of
religious oaths and the fear of damnation. But a few scholars
continue to assert that compulsory questioning is inherently
cruel. Some argue that it imposes intolerably difficult choices on
guilty suspects 4 or violates a "natural right" to defend against
11. See J. Bentham, Rationale of Judicial Evidence (London: Hunt and Clarke,
1827), pp. 207-83; J. Wigmore, "Nemo Tenetur Seipsum Prodere" (1891), 5
Harv. L. Rev. 71; C. McCormick, "Some Problems and Developments in the
Admissibility of Confessions" (1946), 24 Tex. L. Rev. 239; J. McNaughton, "The
Privilege Against Self-Incrimination: Its Constitutional Affectation, Raison
d'Etre and Miscellaneous Implications" (1960), 51 J. Crim. L., Criminology &
Police Sci. 138; Friendly, supra, footnote 7; D. Dolinko, "Is There A Rationale
for the Privilege Against Self-Incrimination?" (1986), 33 UCLA L. Rev. 1063;
Dripps, supra, footnote 7; S. Schulhofer, "Some Kind Words for the Privilege
Against Self-Incrimination" (1991), 26 Val. U. L. Rev. 311; Amar and Lettow,
supra, footnote 7; D. Seidmann and A. Stein, "The Right to Silence Helps the
Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege" (2000),
114 Harv. L. Rev. 430 at pp. 451-55.
12. Helen Silving, "The Oath: Part I" (1959), 68 Yale L.J. 1329 at pp. 1366-67 and
1382. The notion that there is no moral duty of self-incrimination was asserted by
Thomas Aquinas, who argued in the Summa Theologia that silence in the face of
an oath was justified in the absence of accusation or express evidence of guilt: St.
Thomas Aquinas, Summa Theologia, pt. II, qu. 69, art. 2, at pp. 257-59 (Fathers
of the English Dominican Province trans. 1929).
13. See sources cited ibid.
14. In Murphy v. Waterfront Commission, 378 U.S. 52 at p. 55 (1964), the United
States Supreme Court referred to the "cruel trilemma" created by compulsion.
2003] What's Wrong with Self-Incrimination?PartI

state-imposed punishment. 5 Others assert that by forcing

suspects to reveal remorse and self-condemnation, compulsion
strips confessors of their agency and self-determination and impedes
their moral development. 6 Still others maintain that it is unfair to
expect suspects to conform to a standard of conduct (admitting
criminal culpability) that most people would likely resist. 7
Though their precise contours vary, each of these arguments
hinges on the assumption that forcing suspects to act against
their own interests causes them a degree of psychological harm
that outweighs society's interest in detecting and punishing crim-
inal conduct. This claim does not stand up to scrutiny. First, it is
not clear that compulsory questioning causes very many suspects
acute psychological injury. Any harm caused by compulsion
simpliciter is not inherently abusive. Witnesses are regularly
threatened with sanctions for contempt and perjury.18 So free
choice advocates must mean that compelling self-incriminating
testimony causes unwarranted psychic harm.
It is true, of course, that most criminals would rather remain
silent or lie than reveal their guilt to authorities. Self-preservation,
in this sense, is a natural instinct. It is also true that compelled
questioning forces factually guilty suspects to make difficult
Guilty suspects could (i) admit guilt and face the consequences of conviction; (ii)
lie and risk conviction for perjury; or (iii) remain silent and be sanctioned for con-
tempt. See also I. Dennis, supra,footnote 7, at p. 358; K. Greenawalt, "Silence as
a Moral and Constitutional Right" (1981), 23 Wm. & Mary L. Rev. 15 at pp. 20-
39; P. Westen and S. Mandell, "To Talk, To Balk, or To Lie: The Emerging Fifth
Amendment Doctrine of the 'Preferred Response"' (1982), 19 Am. Crim. L. Rev.
521 at pp. 521-22.
15. See A. Fortas, "The Fifth Amendment: Nemo Tenetur Prodere Seipsum" (1954),
25 Clev. B.A.J. 91 at pp. 98-99. D. Ayer, "The Fifth Amendment and the Inference
of Guilt from Silence: Griffin v. CaliforniaAfter Fifteen Years" (1980), 78 Mich.
L. Rev. 841 at p. 851.
16. See Gerstein, "Privacy and Self-incrimination" (1970), 80 Ethics 87; Gerstein,
"Punishment and Self-Incrimination" (1971), 16 Am. J. Juris. 84; Gerstein, "The
Demise of Boyd: Self-incrimination and Private Papers in the Burger Court" (1979),
27 UCLA L. Rev. 343. See also Brooks, supra, footnote 10, at pp. 74-75.
17. See C. McCormick, McCormick on Evidence, 3rd ed. by E. Cleary (St. Paul:
West, 1984) at pp. 286-88; L. Sunderland, "Self-Incrimination and Constitutional
Principle: Miranda v. Arizona and Beyond" (1970), 15 Wake Forest L. Rev. 171
at pp. 179-82; W. Stuntz, "Self-Incrimination and Excuse" (1988), 88 Colum. L.
Rev. 1227.
18. See J. Grano, Confessions, Truth and the Law (Ann Arbor: Michigan University
Press, 1993), p. 38.
260 Criminal Law Quarterly [Vol. 48

choices. Telling the truth will often be painful, especially given the
penalties flowing from the conviction that is likely to follow.
Lying or refusing to respond also entail potentially harmful
consequences. Yet the psychic harm associated with compelled
self-incrimination is often greatly exaggerated. Defenders of
the free choice rationale imply that the state can compel self-19
incrimination in the most direct and distasteful fashion.
Conjuring up images of medieval torture and futuristic mind-read-
ing machines, these writers suggest that truthful testimony can lit-
erally be extracted from criminal suspects." But when we consid-
er the features of a model compulsory examination scheme,2 ' we
can see that their effects on suspects' psyches would be far less
draconian. In such a scheme, the only pressure to testify would
arise from the threat of a contempt sanction or adverse inference.
And apart from those influenced by exceptional degrees of con-
science or religious belief, the only pressure to testify truthfully
would arise from the relatively remote possibility of a perjury
conviction. For a great many factually guilty suspects, the path of
least resistance would simply be to lie. Skilful prosecutors could
damage such suspects through cross-examination and the presen-
tation of contradictory evidence. But this method ofeliciting self-
incriminating evidence is hardly barbaric, especially given the
presence of a supervising judge, a zealous defence lawyer, and pro-
hibitions on abusive questioning.22 Some suspects would make self-
incriminating statements, of course, and in so doing might experi-
ence and express feelings of remorse or self-condemnation.23
These feelings stem, however, from their initial wrongdoing, and
19. See, e.g., D. Paciocco, "Self-Incrimination: Removing the Coffin Nails" (1989),
35 McGill L.J. 73 at p. 88; L. Seidman, "Points of Intersection, Akhil Amar and
the (Premature?) Demise of Criminal Procedure Liberalism" (1998), 107 Yale
L.J. 2281 at pp. 2303-04.
20. See, e.g., D. Galligan, "The Right to Silence Reconsidered", [1988] Current Leg.
Prob. 69 at pp. 88-90.
21. See supra, footnote 7 and sources cited therein.
22. See D. Paciocco, CharterPrinciples and Proofin CriminalCases (Scarborough:
Carswell, 1987), p. 484 (".... permitting accused persons to refuse to testify for
fear that they will be badgered as witnesses seems to amount to a rather extreme
case of overkill").
23. Many suspects, however, admit facts relating to criminal behaviour without experi-
encing or expressing self-destructive emotions. See Schulhofer, supra,footnote 11,
at pp. 320-21.
2003] What's Wrong with Self-Incrimination? Part I

would exist apart from the act of self-incrimination. It is highly

unlikely that making self-incriminatory statements in response to
civilized questioning would exacerbate these feelings to such a
extent as to destroy suspects' agency or impede their moral devel-
opment.24 Perry Mason aside, it is quite rare for defendants to offer
full confessions while testifying voluntarily. When prosecutors
elicit self-incriminating information (or when defence lawyers do
so unwittingly), it usually consists of contradictory or incredible
statements. And even in those rare cases where legal compulsion
would cause suspects to fully admit their guilt and experience
some kind of emotional breakdown, it is not self-evident that this
would diminish their agency or moral character. It seems equally
likely that their prospects for self-determination and moral
development would be enhanced by the opportunity to take
responsibility for their misdeeds.25 Being required to answer
questions about criminal conduct (or facing the risk of adverse
consequences for failing to do so) may be unpleasant, but it is not
inherently cruel.
Whatever harm might be generated by compulsory judicial
examination, moreover, is easily outweighed by the state's
interest in punishing criminals. There are many situations where,
in the name of the collective good, the law commands people to
act against their "natural" instincts. Wrongdoers' instincts may
tell them to avoid detection and punishment, but it does not
follow that the law should help them to do so. It may be rational
for criminals to destroy evidence, resist arrest, flee the juris-
diction, suborn perjury, and obstruct the course of justice. But we
still view these activities as wrongful and punish them as
independent criminal offences.26
We also often require people to give evidence in trying
circumstances. Consider the situation of a parent forced to testify
against her child, a mob informer facing the threat of death
for his testimony, or a rape victim faced with the dilemma of
either reliving her trauma and exposing herself to intrusive
cross-examination or seeing her assailant go free.27 Witnesses in
24. See Dolinko, supra, footnote 11, at pp. 1126-37.
25. Ibid., at pp. 1127-28.
26. Ibid., at pp. 1097-98.
27. Ibid., at pp. 1093-94.
 Criminal Law Quarterly [Vol. 48

these unfortunate circumstances, moreover, are usually not

morally responsible for their predicaments.28 This is not the case for
guilty suspects facing the prospect of compelled self-incrimination,
who are the authors of their own misfortunes. Why should we
protect the guilty from being forced to make difficult testimonial
decisions when we do not protect the innocent?
The critical flaw of the self-incrimination-based version of the
free choice rationale, then, is that it only protects the interests of
factually guilty suspects. By definition, it is only the guilty who
are harmed by the act of self-incrimination. Again by definition,
the guilty are deserving of punishment.29 So compelled self-
incrimination is only unjustified if the harm that it causes
criminals outweighs society's interest in increasing the likeli-
hood of their conviction. It is difficult to envisage circumstances
that would satisfy this condition. If the offence is serious, then
whatever pain is associated with the "trilemma" of confession,
contempt or perjury is extremely unlikely to outweigh society's
interest in convicting the guilty. Conversely, if punishments are
light, then the harm produced by compulsory judicial examina-
tion is trivial and will again very likely be dwarfed by the
interests of law enforcement. Even those guilty of serious crimes
are deserving of some measure of compassion, dignity and
respect. All but the most vengeful of us abhor the infliction of
excessive pain upon those who have transgressed society's basic
norms. But if the pain is at worst only moderate, is by definition
inflicted only upon the guilty, and facilitates the detection and
conviction of wrongdoers, then it is readily justified.
This conclusion becomes even more evident when we com-
pare judicial examination with police interrogation. Whatever
28. See S. Penney, "Theories of Confession Admissibility: A Historical View"
(1998), 25 Am. J. Crim. L. 309 at pp. 375-76.
29. This assumes, of course, that the offence that the suspect is alleged to have com-
mitted is deserving of punishment. Interestingly, the privilege against self-incrim-
ination was historically associated with attempts to challenge the substantive fair-
ness of laws imposing religious orthodoxy. See L. Levy, Origins of the Fifth
Amendment: The Right Against Self-Incrimination(New York: Oxford University
Press, 1968), pp. 63-64 and 79-82. In modem times substantive fairness can be
reviewed directly under a variety of constitutional provisions. We no longer need
rules prohibiting self-incrimination, in other words, to protect us against bad
laws. See W. Stuntz, "The Substantive Origins of Criminal Procedure" (1995),
105 Yale L.J. 393 at pp. 411-16.
2003] What's Wrong with Self-Incrimination? Part I

degree of trauma judicial examination might cause, it pales

compared to that regularly inflicted during interrogations. As I
discuss in detail later, while suspects are free to refuse police
inquiries, police are permitted to use considerable pressure to
convince them to cooperate and confess. Police may employ
tactics such as isolation, trickery and badgering that would never
be tolerated in a supervised courtroom examination." Since
confessing is rarely in suspects' best interests, 3 and since courts
regularly admit confessions induced by pressurized, manipulative
questioning, it is clear that we are willing to accept significant
incursions into agency and self-determination in order to convict
the guilty. If we tolerate the substantial psychological harm
produced by (non-legal) compulsion in the context of police
questioning, then why should we not be willing to accept the
considerably lesser harm generated by (legal) compulsion in the
context of judicial examination?
I should make it clear that I am not advocating for a system of
mandatory judicial questioning to replace police interrogation.
That proposal has its flaws, not the least of which is the fact that
it is likely to produce far less self-incriminating evidence than
police interrogation. As I discuss later, compulsory questioning
may also engender reliability problems. More important, such a
radical change in the law is not politically tenable. The counter-
example of judicial interrogation is important, however, because
it emphatically demonstrates that compulsory questioning is not
intrinsically cruel.
(b) Free Choice and Privacy
The second version of the free choice rationale maintains that a
deontic right to silence is required to protect suspects from unjusti-
fied invasions of privacy. 2 The protection of privacy, as I have

30. See Amar and Lettow, supra, footnote 7, at p. 894.

31. Of course, some confessions are rational and self-interested. This will be the case,
for example, when the state has a strong case against a suspect notwithstanding
the absence of a confession and the suspect can exchange a confession or other
useful information for leniency. But these cases generally result in guilty pleas,
not trials. By challenging the admissibility of their confessions at trial, suspects
effectively declare that confessing was not in their best interests.
32. Some of the free choice arguments considered immediately above can also be cast
in terms of privacy protection. See especially the works of Gerstein, cited supra,
 Criminal Law Quarterly [Vol. 48

discussed, is also a cornerstone of the abuse-prevention rationale. It

justifies both limits on the state's ability to pressure suspects to pro-
vide self-incriminating information in the absence of sufficient
grounds for suspicion as well as protections against physically and
psychologically oppressive interrogation techniques. Free choice
theorists, however, believe that privacy is always unduly imperilled
by legal compulsion, regardless of the degree of suspicion attaching
to suspects or the means used to persuade them to speak. The
Supreme Court of Canada has labelled this version of the free choice
rationale the "case to meet" principle33 and has used it to rationalize
much of its post-Charter self-incrimination jurisprudence:'
Perhaps the single most important organizing principle in criminal law is
the right of an accused not to be forced into assisting in his or her own
prosecution... This means, in effect, that an accused is under no obliga-
tion to respond until the state has succeeded in making out a primafacie
case against him or her. In other words, until the Crown establishes that
there is a "case to meet," an accused is not compellable in a general sense
(as opposed to the narrow, testimonial sense) and need not answer the
allegations against him or her.
On this view, suspects' privacy and dignity can be adequately
protected only if they are free to remain silent until the prosecution
footnote 16. These arguments maintain that knowledge of one's wrong-doing is
especially intimate and should not therefore be extracted by state compulsion. But
as discussed, divorced from considerations of reliability and abuse, people are not
morally entitled to keep evidence of their own criminal behaviour to themselves.
The privacy-based justifications for the free choice theory that I consider in the
discussion below focus not on the intimate nature of self-incriminating information
but rather on the harms caused by authorities' attempts to elicit self-incriminating
information, regardless of whether those attempts are successful.
33. The case to meet principle was first given academic prominence by Professor Ed
Ratushny. See Ratushny, supra, footnote 2. See also T. Quigley, Procedure in
CanadianCriminal Law (Scarborough: Carswell, 1997), pp. 125-28; T. Quigley,
"Principled Reform of Criminal Procedure" in D. Stuart, R.J. Delisle and A.
Manson, eds., Towards A Clear and Just Criminal Law: A Criminal Reports
Forum (Scarborough: Carswell, 1999), p. 253 at pp. 289-90; Paciocco, supra,
footnote 22, at pp. 451, 484-85 and 495. Its most forceful proponent on the
Supreme Court was former Chief Justice Lamer. See R. v. Dubois, [1985] 2
S.C.R. 350 at pp. 357-58, 22 C.C.C. (3d) 513, 48 C.R. (3d) 193; R. v. P (MB.),
[1994] 1 S.C.R. 555, 89 C.C.C. (3d) 289, 29 C.R. (4th) 209. See also R. v. S.
(R.J.), [1995] 1 S.C.R. 451 at paras. 81 and 83, 96 C.C.C. (3d) 1, 36 C.R. (4th) 1,
per Iacobucci J. See generally D.M. Paciocco, "Self-Incrimination and the Case
to Meet: The Legacy of Chief Justice Lamer" (2000), 5 Can. Crim. L. Rev. 63.
34. P (MB.), ibid., at p. 577 (citations omitted).
2003] What's Wrong with Self-Incrimination? Part I

has established enough evidence of guilt at trial to convict them.

In fact, the case to meet principle does not authorize legal com-
pulsion at any point in the process. It simply recognizes
that a practical compulsion to testify will often arise once the
prosecution has established a primafacie case.
The policy undergirding the case to meet principle is unassail-
able. The principle simply attempts to prevent the first type of
abuse discussed earlier: the unjustified targeting of suspects for
inquisitorial questioning.35 But taken literally, the case to meet
principle is grossly overbroad. Protecting suspects against
fishing expeditions does not require an inflexible rule prohibiting
compulsion prior to the prosecution establishing a case to meet.
Nor does it require granting them perpetual immunity from com-
pelled self-incrimination. As I have discussed, it requires only
that the state first establish
36
sufficient grounds for suspecting
them of criminal activity.
In other contexts the law authorizes the state to make serious
incursions into personal privacy and dignity upon a showing of rea-
sonable and probable grounds.37 This standard is sufficient to justi-
fy arrest and detention; searches of homes, personal property, and
persons; the forcible taking of bodily samples for forensic analysis;
and the surreptitious interception of private communications. In
situations where privacy interests are particularly strong, the law
sometimes demands additional protections.38 But in no case does it
require that the state establish aprimafaciecase. Indeed, the right to
silence may induce police to engage in investigative techniques, like
undercover infiltration and electronic surveillance, that are con-
siderably more invasive of privacy than compulsory examination.39
In a number of circumstances, moreover, the law permits the
state seriously to invade suspects' privacy without meeting any
standard of justification. Intimate private information about
35. See Mewett, supra, footnote 7, at pp. 186-90.
36. See also A. Mewett, "Editorial: Accusation and Proof' (1972-73), 15 C.L.Q. 241.
37. See Penney, supra, footnote 6, at p. 253.
38. In the case of wiretap warrants, for example, police must, in addition to showing
reasonable and probable grounds, establish that less intrusive investigative
measures are impracticable.
39. See M. Green, "The Privilege's Last Stand: The Privilege Against Self-
Incrimination and the Right to Rebel Against the State" (1999), 65 Brooklyn L.
Rev. 627 at p. 659.
 CriminalLaw Quarterly [Vol. 48

suspects may be compelled from others. And the state may force
non-accused witnesses to reveal private, inculpatory information
about themselves, as long as that information is not later used to
incriminate them. The provision of immunity may limit harms
flowing from the act of self-incrimination (which I have argued
do not outweigh competing societal interests), but it does
nothing to protect privacy. 0 If the privilege against self-
incrimination were designed to protect privacy, then it would
focus on the nature of the information that the state seeks to
compel. But as we know, the privilege protects suspects only
from the consequences of compelled disclosure.41
To summarize, neither version of the free choice rationale is at
all convincing. Theories focusing on the act of self-incrimination
exaggerate the harm generated by legal compulsion and
perversely favour lawbreakers' interests over those of law-
abiding persons. Theories that centre on privacy protection avoid
the latter problem, but unjustifiably prohibit compulsion even
when authorities have solid grounds for inquiry. As I elaborate in
the remainder of this article, self-incrimination law should be
constructed with only two ends in mind: ensuring reliable
factual determinations and preventing abuses in selecting sus-
pects for inquiry and inducing them to provide self-incriminating
information. Whether and to what extent criminal suspects
should be free to choose whether to cooperate with investigators
will occasionally be relevant to this endeavour. In the context of
police interrogation, for example, the provision of choice may
help to prevent abusive interrogation techniques and false con-
fessions.42 But here as elsewhere, preserving freedom of choice
is not an end in itself. In many circumstances the absolute denial
of choice is perfectly compatible with sound criminal justice
policy. In the discussion that follows in the next two issues of
this journal, we will see that the Supreme Court's preoccupation
with the free choice rationale has too often prevented it from
making reasonable accommodations between the legitimate and
often competing interests at stake in the criminal justice process.
(To be continued.)

40. See Amar and Lettow, supra, footnote 7, at p. 47.

41. See Stuntz, supra, footnote 17, at p. 1234.
42. See discussion infra, Part 3(2), "Section 10 of the Charter".