Privilege against Self-Incrimination - Criminal Defendant Privilege

In MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court extended the right to remain silent to pretrial CUSTODIAL INTERROGATIONS. The Court held that before a suspect is questioned, the police must apprise the suspect of his or her right to remain silent and that if he or she gives up this right, any statements may be used against the suspect in a subsequent criminal prosecution. Under Miranda, suspects also have a FIFTH AMENDMENT right to consult an attorney before they submit to questioning. Miranda applies to any situation in which a person is both held in custody by the police, which means that he or she is not free to leave, and is being interrogated, which means he or she is being asked questions that are designed to elicit an incriminating response. A person need not be arrested or formally charged for Miranda to apply.

Miranda has been scrutinized by law enforcement personnel and others since it was first decided. In 1968, Congress enacted a law, codified at 18 U.S.C.A. § 3501, that restored voluntariness as a test for admitting confessions in a federal court. The U.S. JUSTICE DEPARTMENT, however, under attorneys general of both major political parties, refused to enforce the provision, believing it to be unconstitutional. The Supreme Court, in Dickerson v. United States, 30 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), ruled that this law could not revoke Miranda because the 1966 decision had been made on constitutional grounds.

For criminal defendants, the privilege against self-incrimination includes the right to refuse to testify at trial. A defendant may testify at a PRELIMINARY HEARING on the admissibility of evidence without waiving the right to not testify at trial. Incriminating statements made by a defendant in a preliminary hearing are not admissible at trial, and the prosecutor may not comment on them.

The Court has held that the privilege is not compromised by laws that require persons to surrender identification to law enforcement personnel. California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971). A person who is suspected of a crime may be compelled to testify before a GRAND JURY, a legislative body, or an administrative board. The person must appear and answer questions, but he may claim the privilege against self-incrimination when necessary.