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Further Readings

Giving testimony in a trial or other legal proceeding that could subject one to criminal prosecution.

The right against self-incrimination forbids the government from compelling any person to give testimonial evidence that would likely incriminate him during a subsequent criminal case. This right enables a defendant to refuse to testify at a criminal trial and "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings" (Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 [1973]).

Confessions, admissions, and other statements taken from a defendant in violation of this right are inadmissible against him during a criminal prosecution. Convictions based on statements taken in violation of the right against self-incrimination normally are overturned on appeal, unless there is enough admissible evidence to support the verdict. The right of self-incrimination may only be asserted by persons and does not protect artificial entities such as corporations (Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341, 101 L. Ed. 2d 184 [1988]).

This testimonial privilege derives from the FIFTH AMENDMENT to the U.S. Constitution. Most state constitutions recognize a similar testimonial privilege. However, the term self-incrimination is not actually used in the Fifth Amendment. It provides that "[n]o person … shall be compelled in any criminal case to be a witness against himself."

Although the language of the Fifth Amendment suggests that the right against self-incrimination applies only during criminal cases, the Supreme Court has ruled that it may be asserted during civil, administrative, and legislative proceedings as well. The right applies during nearly every phase of legal proceedings, including GRAND JURY hearings, preliminary investigations, pretrial motions, discovery, and the trials themselves. However, the right may not be asserted after conviction when the verdict is final because the constitutional protection against DOUBLE JEOPARDY protects defendants from a second prosecution for the same offense. Nor may the privilege be asserted when an individual has been granted IMMUNITY from prosecution to testify about certain conduct that would otherwise be subject to criminal punishment.

At the same time, the right against self-incrimination is also narrower than the Fifth Amendment suggests. The Fifth Amendment allows the government to force a person to be a witness against herself or himself when the subject matter of the testimony is not likely to incriminate the person at a future criminal proceeding. Testimony that would be relevant to a civil suit, for example, is not protected by the right against self-incrimination if it does not relate to something that is criminally inculpatory. By the same token, testimony that only subjects a witness to embarrassment, disgrace, or opprobrium is not protected by the Fifth Amendment.

The right against self-incrimination is sometimes referred to as the right to remain silent. The Self-Incrimination Clause affords defendants the right not to answer particular questions during a criminal trial or to refuse to take the witness stand altogether. When the accused declines to testify during a criminal trial, the government may not comment to the jury about his or her silence. However, the prosecution may assert during closing argument that its case is "unrefuted" or "uncontradicted" when the defendant refuses to testify (Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). However, before the jurors retire for deliberations, the court must instruct them that the defendant's silence is not evidence of guilt and that no adverse inferences may be drawn from the failure to testify.

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 said that before a suspect is questioned, the police must apprise him of his right to remain silent and that if he gives up this right, any statements may be used against him in a subsequent criminal prosecution. Under Miranda, suspects also have a Fifth Amendment right to consult with 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 is not free to leave, and is being "interrogated," which means he 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.

In Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), the Supreme Court held that a person who pleads guilty to a crime does not waive the self-incrimination privilege at sentencing. The Court acknowledged that it is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the PRIVILEGE AGAINST SELF-INCRIMINATION when questioned about the details. However, the Court found a significant difference between the waiver of the right against self-incrimination in a trial and in a sentencing hearing. The concerns, which justify the cross-examination when the defendant testifies, are absent at a plea hearing. Treating a guilty plea as a waiver of the self-incrimination clause would allow prosecutors to indict a person without specifying the quantity of drugs at issue, obtain a guilty plea, and then put the defendant on the witness stand to tell the court the quantity. Such a scenario would make the defendant "an instrument of his or her own condemnation." This would undermine constitutional CRIMINAL PROCEDURE, turning an adversarial system into an inquisition.

In Miranda the Supreme Court examined a number of police manuals outlining a variety of psychological ploys and stratagems that they employed to overcome the resistance of defiant and stubborn defendants. Such interrogation practices, the Court said, harken back to the litany of coercive techniques used by the English government during the seventeenth century.

The Founding Fathers drafted the Fifth Amendment to forestall the use of torture and other means of coercion to secure confessions. The founders believed that coerced confessions not only violate the rights of the individual being interrogated but also render the confession untrustworthy. Once a confession has been coerced, it becomes difficult for a judge or jury to distinguish between those defendants who confess because they are guilty and those who confess because they are too weak to withstand the coercion.

Defendants may waive their Fifth Amendment right to remain silent. However, the government must demonstrate to the satisfaction of the court that any such waiver was freely and intelligently made. The Supreme Court ruled that a confession that was obtained after the suspect had been informed that his wife was about to be brought in for questioning was not the product of a free and rational choice (Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 [1961]). It also held that a statement was not freely and intelligently made when a defendant confessed after being given a drug that had the properties of a truth serum (Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 [1963]).

Congressional anger at the Miranda decision led to the passage in 1968 of a law, 18 U.S.C.A. § 3501 (1985), that restored voluntariness as the test for admitting confessions in federal court. As long as a court could conclude that the defendant's statements were voluntary, the confession was admissible. The JUSTICE DEPARTMENT refused to employ the law, believing the law was unconstitutional. However, in the late 1990s the law was briefly revived when the Fourth Circuit Court of Appeals ruled that Congress had the authority to invalidate Miranda. The Supreme Court, in Dickerson v. United States, 30 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), overturned this ruling. The Court reaffirmed that it had announced a constitutional rule in Miranda. Therefore, Congress could not revoke the decision by statute; the only option for Congress was a constitutional amendment.

The right against self-incrimination is not absolute. A person may not refuse to file an income tax return on Fifth Amendment grounds or fail to report a hit-and-run accident. The government may compel defendants to provide fingerprints, voice exemplars, and writing samples without violating the right against self-incrimination because such evidence is used for the purposes of identification and is not testimonial in nature (United States v. Flanagan, 34 F.3d 949 [10th Cir. 1994]). Despite the dubious grounds for the distinction between testimonial and non-testimonial evidence, courts have permitted the use of videotaped field sobriety tests over Fifth Amendment objections.

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