The Right to Remain Silent: A Retrospective of the Privilege Against Self-Incrimination in the United States

Author: Michael Mears


          The right to remain silent began in our justice system because of the trials and tribulations of a long line of martyrs.  According to an exhaustive study of the development of this area of common law by Leonard Levy, the first person on record to suffer death because he asserted his right to remain silent was John Lambert.  Upon being accused of the infamous crime of heresy in 1537, Lambert told his inquisitors, “though I did remember . . . yet were I more than twice a fool to show you thereof; for it is written in your own law, ‘[n]o man is bound to . . . accuse himself.”

            In the late sixteenth and early seventeenth centuries, the draconian Star Chamber contributed to the development of the right to remain silent.  Active in the Tudor and early Stuart periods of English history, the Court of Star Chamber was an outgrowth of the royal council and consisted of judges and privy councillors.  The purpose of the Star Chamber was to give greater speed and flexibility to common-law courts and equity courts in both civil and criminal matters.  As a result of the ruthless inquisitorial nature of the Star Chamber judges, the term has become synonymous with secret, oppressive, or irresponsible court proceedings.

            The Star Chamber was eventually abolished by the British House of Commons in 1641, in large part because of the bravery and unswerving dedication of the immortal John Lilburne.  He was steadfastly dedicated to maintaining his right to remain silent, even in the face of his inquisitors, and he refused to convict himself of a crime by waiving that right.  Lilburne was committed to prison by the Court of Star Chamber after two of his associates accused him of importing seditious books in order to save their own lives.  Under the law at that time, to secure a conviction for his crime the government needed Lilburne’s confession in addition to the accusations of his associates.  When the Star Chamber brought him before the judges, Lilburne refused to take the oath or answer any questions.  He was found guilty of contempt and was sentenced to public whipping and locked in the pillory in the middle of London.  He was subsequently whipped over 200 times on the two-mile walk to the pillory, and his remarkable courage to withstand the punishment rather than confess won him instant fame.  On the way to the pillory and between floggings, Lilburne told the assembled crowds that the “law of God . . . requires no man to accuse himself.”  Then, in November of 1640, a new member of Parliament delivered an impassioned speech in support of John Lilburne’s freedom, which subsequently led to his and other prisoners’ release.  Parliament met in April 1641 and determined that Lilburne’s imprisonment and punishment were “illegal and against the liberty of the subject” and ordered that he be released and receive reparations for his suffering.

            Although Parliament freed Lilburne, the House of Commons had not established the right to remain silent by law, but it did establish the right against self-incrimination.  Under the common law, torture was illegal when its purpose was to extort confessions, and common law has long accepted, at least abstractly, that one should not force a person to accuse himself.  Still, there was no official recognition that a refusal to answer incriminating questions did not imply guilt.  It was not until John Lilburne’s courageous stand that the law afforded the right of an accused person to remain silent in common law proceedings.            

          However, John Lilburne’s contributions to the development of the right to remain silent did not end with his vindication by Parliament.  After John Lilburne and one of his associates, Richard Overton, published pamphlets attacking Lord Cromwell in 1649, he was promptly rearrested and returned to prison.  At his trial, John Lilburne again refused to answer any questions and, in addition, he demanded the right to have counsel, time to consult with that counsel, the right to subpoena witnesses in his favor, and a copy of his indictment.  At the end of the trial, the jury returned a not guilty verdict after deliberating for just one hour and Lilburne was once again freed.

The Jury Is Still Out: Waiver or Conversion of the Seventh Amendment Right to Jury Trial in Bankruptcy Cases

Author: Theresa J. Pulley Radwan


The Seventh Amendment to the United States Constitution protects the right to a jury trial in certain civil proceedings.  In the more than 200 years since the adoption of the Seventh Amendment, the United States Supreme Court has provided guidance on its applicability in a variety of proceedings, including those filed under the United States Bankruptcy Code and heard by the bankruptcy courts.  Although this guidance on the intersection of the Seventh Amendment and bankruptcy law clarifies the right to jury trial of some creditors, issues remain regarding a variety of situations in bankruptcy cases.  The way Supreme Court precedent impacts these rights has garnered significant attention, and widespread acceptance exists as to the propriety of Supreme Court caselaw at the core of bankruptcy jury trial opinions.  This Article reconsiders the Supreme Court’s guidance in light of other non-bankruptcy Supreme Court cases and suggests reconsideration of the bases for those opinions as a foundation for future decisions on the ability of a party to seek a jury trial in bankruptcy matters.

The Bill Clinton Exception to the Hearsay Rule

Author: James J. Duane


          Hearsay is usually inadmissible at a trial, although there are exceptions for certain categories of hearsay that are deemed unusually trustworthy or necessary for ascertaining the truth.  When the Federal Rules of Evidence were enacted in 1975, they contained a hearsay exception for “Statements in Ancient Documents,” applicable to almost everything written at least two decades before the trial.  It is not known who first came up with the name for this hearsay exception, but it was most likely a teenager; not many other people would describe someone or something as “ancient” merely because that person or thing is over twenty years old.

            When first enacted, this exception provided that such a document would be admissible, regardless of whether its author was still alive and available to testify, as long as it satisfied the requirements of this definition: “Statements in ancient documents.  Statements in a document in existence 20 years or more whose authenticity is established.”  Likewise, the authentication provisions of the Federal Rules state that such “ancient documents,” if twenty years old by the time of trial, could be established as authentic merely by virtue of their age, as long as their condition and location created no grounds for suspicion concerning their authenticity.

          After four decades on the books, however, this hearsay exception underwent a dramatic revision just a few years ago.  As this Article will demonstrate, the process leading to that amendment was more than a little halting and haphazard.  It included, among other novelties, the adoption of a new rule, without the benefit of public comment, after the Advisory Committee sought and obtained widespread public input on a different plan that the Committee later abandoned.  The result of this peculiar process was a new rule that no longer matches its name or its officially stated justification, and that injects an unfortunate and unprecedented degree of terminological inconsistency into the Evidence Rules.  It has left us with a new rule that now requires a new name—a rule that can be perhaps best described as “The Bill Clinton Exception to the Hearsay Rule.”

Claiming the Psychotherapist-Patient Privilege Under Alabama Law When a Plaintiff in a Civil Case Seeks Mental Anguish Damages

Authors: Terrence W. McCarthy & Logan T. Matthews


          For a plaintiff in a civil lawsuit, there has been a longstanding debate in many jurisdictions about whether a claim asserting mental anguish damages should serve as a waiver of the psychotherapist-patient privilege or whether a defendant should be entitled to discover and introduce evidence of the plaintiff-patient’s confidential communications with a psychotherapist at trial.  Although courts around the country have differing views on this issue, Alabama law is clear: filing a civil lawsuit that seeks mental anguish damages, standing alone, does not serve as a waiver of the psychotherapist-patient privilege.

            The soundness of this rule is the subject of frequent debate, and there are valid arguments on both sides.  On the one hand, if a defendant is not entitled to discover such evidence or introduce it at trial, a defendant may be hamstrung to dispute that its conduct was a contributing cause to the plaintiff’s alleged mental anguish.  For example, suppose a plaintiff has suffered from life-long depression.  In that case, it may be helpful for a defendant to know about the plaintiff’s mental health evaluations or psychotherapist treatment records which precede the lawsuit-triggering event to dispute that the defendant’s conduct was the real cause of the plaintiff’s mental anguish.  On the other hand, if communications between a patient and her psychotherapist are not privileged, a patient may not have the same candor with her psychotherapist, and a psychotherapist may be unable to provide the treatment necessary to relieve a plaintiff-patient of her mental anguish.  Balancing these interests is at the heart of Alabama’s law on the psychotherapist-patient privilege.

            To date, Alabama courts have found that the balance between these competing interests weighs against disclosure when all that is in play is a civil plaintiff suing for mental anguish damages.  But, Alabama courts have found that the balance tips in favor of disclosure in certain cases, typically where an overriding interest is at play.  For example, the mental condition of a parent in a child custody dispute, a defendant’s mental state in an involuntary commitment proceeding, or when the plaintiff has waived her right to claim the privilege.

            This Article discusses the background and general scope of Alabama’s psychotherapist-patient privilege.  Then, it describes what the privilege does not cover.  Next, the Article explains ways plaintiffs can waive the privilege.  To illustrate these waiver concepts, this Article walks through five situations that may arise in a civil lawsuit and discusses how claims of psychotherapist-patient privilege might be analyzed.

Closing the Deal: Principles of Closing Argument Grounded in Empirical Studies and Lessons of the Masters

Author: Harry Mitchell Caldwell


A sound closing argument can indeed close the deal.  A well-executed argument pulls together the evidence in a compelling, persuasive, and successful statement.  Conversely, a closing argument that pontificates and opines, rehashes testimony, or continues ad nauseam, fails to engage the jury and has a diminished chance of success.  There are scores of lawyers trying cases; there are far fewer who lift trial advocacy to an art.  It is to that lofty plane that this Article is dedicated.

Drawing on empirical data studying audience responsiveness, retention, and persuasiveness coupled with excerpts from master trial lawyers, advocates have learned valuable lessons.  The lessons include respecting the collective intelligence of the jury by reasoning with them rather than pontificating at them, sounding themes favoring the advocate’s case, using stories and anecdotes as clarifiers, creating a list to organize critical evidence, studying and responding to juror body language, mitigating harmful evidence, and avoiding wordiness.

Covid-19 Litigation: How has the Pandemic Affected Jurors’ Values Moving Forward?

Photo Credit: (last visited February 1, 2022).

Authored By: John Tully

Articles Editor, American Journal of Trial Advocacy

          In January 2020, our world as we knew it changed forever as the inconceivable happened: a global pandemic emerged.  As we have all seen, Covid-19 has changed a number of ways in which the world works: the capability to effectively work from home, mask and vaccine requirements, and even the way that people will view the world going forward.[i]  However, Covid-19 has also drastically changed the legal landscape. Continue reading “Covid-19 Litigation: How has the Pandemic Affected Jurors’ Values Moving Forward?”

Purdue Pharma and the Opioid Crisis

Photo Credit: (last visited: Jan. 23, 2022).

Authored By: Cecile Nicolson

Editor in Chief, American Journal of Trial Advocacy

          From April 2020 to April 2021, it is estimated that 75,673 people died from opioid overdose, an increase of almost 20,000 from the year before.[1]  The current opioid crisis began in the mid-1990s when the pharmaceutical industry began marketing opioids to primary-care physicians as a form of pain management. Continue reading “Purdue Pharma and the Opioid Crisis”

COVID-19 Vaccine Injuries- If You are Injured by a COVID-19 Vaccine, Can You Sue for Damages?

Photo Credit: (last visited Jan. 13, 2022).

Authored By: Anna Alyce Eastburn

Research and Writing Editor, American Journal of Trial Advocacy

          Vaccines are one of the most successful public health tools in preventing and protecting against vaccine-preventable diseases.[i]  According to the U.S. Centers for Disease Control and Prevention, the immunization of each U.S. child with the current childhood immunization schedule prevents approximately 42,000 deaths and 20 million cases of disease, with a net savings of nearly $14 billion in direct costs and $69 billion in total societal costs.[ii]  Despite vaccines being the best defense against vaccine-preventable diseases, no vaccine is 100% safe or effective. Continue reading “COVID-19 Vaccine Injuries- If You are Injured by a COVID-19 Vaccine, Can You Sue for Damages?”

Can Injured Employees Receive Compensation Through Their Employers for Medical Marijuana Treatment?

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Authored By: Ken Thompson

Member, American Journal of Trial Advocacy

          Minnesota recently addressed a question many medical marijuana patients have throughout the country with respect to their treatments: is treatment for a workplace accident covered by our employers?  On one hand, Minnesota legalized cannabis both recreationally and medicinally and, on the other, Federal Law still recognizes cannabis as a controlled substance.[i]  Such a question also holds pertinent questions for employers looking to find a cost efficient and productive form of treatment for its workers: if we provide medicines that are illegal at the federal level, are we aiding and abetting the use of a controlled substance so as to give rise to liability? Continue reading “Can Injured Employees Receive Compensation Through Their Employers for Medical Marijuana Treatment?”

Medicaid: Why Alabama Needs to Expand

Photo Credit: (last visited Dec. 16, 2021).

Authored By: Mickala Lewis

Research and Writing Editor, American Journal of Trial Advocacy

          Medicaid is a public health insurance program for individuals with low income in the United States.[1]  Since April 2021, Medicaid has provided healthcare coverage for over 75 million Americans, 751,960 of which are Alabamians.[2]  The program was created in 1965 when President Lyndon B. Johnson signed Title XIX of the Social Security Act into law.[3] Originally, Medicaid did not provide coverage to all low income individuals.[4]  Rather, eligibility was limited to individuals with low income who also fell into one of the following categories: children, pregnant women, elderly, or disabled.[5]  Over time, Congress expanded the program to offer more benefits and provide coverage to more people. Continue reading “Medicaid: Why Alabama Needs to Expand”