The idea of remaining silent when faced with accusation has historical religious and legal roots. Moses teachings', transformed to written form by the ancient Talmudic law had a complete ban on self-incrimination. The self-incrimination law could not be changed because it was viewed to contravene the natural instinct for survival. The ancient common law rule also had it that confusions must be voluntary. When the right to remain silent was included in the Fifth Amendment of the U.S. constitution, it was tied to a complicated and controversial history. The Supreme Court has applied three tenets in the constitution to evolve rules that govern police interrogation and the confession process. These three include the Sixth Amendment on the Right to Counsel, the Fourteenth Amendment clause on due process and the Fifth Amendment on Self-incrimination clauses. Each of these provisions has led the police to handle interrogation and confessions in varying ways (Samaha, 2012).Although it is argued that the self-incrimination concept is rooted in Talmudic law and the thinking of the early Christians, the current state was inspired by the happenings of the English Civil War sometime in the mid seventeenth century. Some Ecclesiastical courts such as the Star Chamber and the High Commission made use of an ex-officio oath to try to subvert religious dissent that was common among Catholics and Puritans. A suspect was required to respond to all the questions with honesty, even though such a suspect never knew what questions would be asked during trial. The authorities at the time did not need a basis to believe that the suspect committed the crime (Confessions - the Self-incrimination Approach historical background, 2016).

To clear matters, the bills of rights of the state applied in the 1770s and 1780s included a privilege that barred self-incrimination. For instance, section 8 of the Declaration of Rights of Virginia stated that in all criminal and capital prosecutions, one cannot be forced to provide evidence against oneself. Some critics argue that such provisions were provided only to guard existing procedures against the retrenchment of the British, not for reform purposes. Consequently, forced incrimination before peace justices was maintained as a norm (Confessions - the Self-incrimination Approach historical background, 2016).

When the 1787 constitution was presented before the states for them to ratify, over 50% of the states recommended amendments. Four of the conventions including North Carolina, Rhode Island, Virginia, and New York, pointed to the need to include the versions of sections 8 of the Virginia Declaration of Rights. James Madison, who was opposed to the Bill of Rights at the beginning, brought the bill to the House of Representatives. His proposal contained a clause to the effect that no one shall be forced to testify against themselves. No one opposed the change; therefore, the provision on self-incrimination was passed unanimously by the House. The senate passed it without changes. The states followed by ratifying the provisions and the rest of the Bill of Rights (Confessions - the Self-incrimination Approach historical background, 2016).

Development of rationale and justifications

The Right-to-counsel approach

A number of factors drew a clear line between the rights to counsel as outlined in the Fifth Amendment from that of the Sixth Amendment. Some of the factors include the reasoning of the Sixth Amendment clause on the right to counsel and circumstances in which such right is applicable. According to the Sixth Amendment, the accused is allowed to enjoy the right to counsel for their defense. According to the Supreme Court interpretation, the Sixth Amendment right to counsel clause serves two objectives: i) to minimize the...

The leveraging presence affords parity between the accused and the government. Such parity is desirable in a free law abiding society because the tenets of our adversarial criminal justice system states that partisan advocacy on either side of the case will enhance the eventual objective that those who are guilty should be convicted and the ones that are not guilty are acquitted. The protection against intentional government interference with the relationship between the client and their attorney's privacy is another instance of the significant basis for the right to counsel jurisprudence encouraged by the Supreme Court's Sixth Amendment.
The Sixth Amendment grants the accused the right to counsel after the formal initiation of charges. Such guarantee stops the government from acting in ways that interfere with the protections provided the accused persons by invoking such right. Such interference includes exploitation by the state of a chance to confront the accused persons not accompanied by their counsel. In addition, the court points out that after the start of the adversarial criminal proceedings, once the accused person has acquired the services of a lawyer, a clear set of safeguards provided by the constitution, aimed at protecting the client-lawyer relationship and privacy, is enforced. The Sixth Amendment therefore is intended to provide the right to fair trial even as it protects the privileges of the client to have a relationship with their lawyer without interference (Mims, 2010).

In a case in 1964, the Supreme Court on a majority decision of 5 to 4 decided to turn to the Sixth Amendment right to counsel provision as the ground for reviewing the confession cases of the state. In the case, the accused, Danny Escobedo requested the Chicago police to allow him to see his lawyer. The police turned down his request. Escobedo's mother requested his lawyer to go to the station nonetheless. The officers still prevented the lawyer from meeting Danny Escobedo. Escobedo eventually confessed. However, the confession was annulled because it was made without Escobedo's lawyer's presence. In view of the court, when police investigation focuses on particular suspects, the criminal prosecution starts; and thus, the right to counsel must be respected. It points out that if the accused do not have a right to an attorney until they are presented for trial, and they make confessions before trial that with no lawyer around to advise them, it means that such a trial is an appeal from the interrogation (Samaha, 2012).

Four justices argued that if lawyers were allowed in the interrogation rooms, the whole purpose of confessions would be thwarted. They argued any sane lawyer would simply ask his client not to make any statement to the police. A justice White's argument (he was dissenting), he did not see in any way that that there would be a dent in law enforcement by the rule delivered on that day. He pointed out that the need for order and peace was too insistent to allow that to happen. However, he noted that such enforcement would be made harder (Samaha, 2012).

The Self-Incrimination Approach

In 1966, the court suddenly dropped the right to counsel approach to custodial interrogation by the police. In the Miranda vs. Arizona case in 1966, in a 5 to…