By Chelsea Lund, Summer Associate

Most people are familiar with the term “pleading the fifth” which refers to the self-incrimination clause of the 5th Amendment. The most recent and controversial example of this is in the Jerry Sandusky trial, in which the defense opted out of putting Sandusky on the stand. But where did this idea come from? And in what way, if any, did this affect the outcome of the Sandusky trial?

In the late 1400s, torturing and forcing confessions was common practice under the Court of Star Chamber in England. The main reasoning behind this was to seek out religious dissenters whose beliefs differed from those of the state-sanctioned Church of England. Specifically the Court tended to target Puritans and would coerce them into admitting they did not agree with the Church of England.

This type of coercion, referred to as truth-seeking, continued into the 1600s. Even though public opposition to this method grew over the years, it wasn’t until 1638 that someone chose to take action. John Lilburne was put on trial for printing and distributing Puritan literature that was not approved by the government in England. After being arrested, Lilburne refused to take the ‘oath ex officio’—a promise to answer all questions asked truthfully without even knowing the charges or evidence—and was consequently tortured and imprisoned for many years in an effort to obtain a confession.

Mainly as a result of this type of mistreatment that Puritans suffered in England, the concept of being free from self-incrimination became common law in America prior to the existence of the US Constitution. It was this mistreatment combined with the desire for addition protection of individual rights that led to the inclusion of the self-incrimination clause in the 5th Amendment, which was ratified in December of 1791.

So what about the Sandusky verdict? This much is clear: Sandusky did not testify, and he was found guilty on 45 of the 48 counts brought against him. But did the former cause the latter? Absolutely not. Choosing not to testify is a constitutional right, and exercising that right does not imply an admission of guilt. If, on the other hand, Sandusky had chosen to testify, it would have caused more harm than good. The prosecution would have slaughtered him; they would have twisted the things he said to work to their advantage. The jury would have read into every time his voice cracked or he cleared his throat; every time he shifted in his seat or looked down at the ground; every time he mumbled or paused while answering.

Though the outcome was unfavorable for the defense, the utilization of Sandusky’s 5th Amendment right not to testify was the right decision.