Confessing in the Human Voice: A Defense of the Privilege against Self-Incrimination

Abstract

The privilege against self-incrimination has been widely attacked as lacking any sound theoretical basis. This article seeks to craft a new one, a variant on the supposedly discredited mental privacy rationale. Drawing on cognitive psychology and linguistics, this piece argues that the privilege is best understood as designed to prevent the compelled disclosure of words or their equivalent. The piece takes oral speech as the paradigm case but expands the argument to written and internet communications. Compelled revelation of words actually changes the speaker's thoughts, feelings, and character while exposing him to unfair judgments about his fundamental nature based upon incomplete information - judgments that his audience will make based upon his words and paralingustic cues alone. The privilege seeks to protect the speaker against this re-definition of his identity in ways that he has not chosen. The privilege is thus more about privacy of words than of thoughts, more about voice (in a very literal sense) than simply about silence.