This entry contains information applicable to United States law only. The right, under the Fifth Amendment to the U.S. Constitution, not to be a witness against oneself in a criminal proceeding.
Generally, the parties in civil or criminal cases have the right to use all evidence relevant to the case. This general rule is considered essential to due process. However, there are some instances where a person may refuse to give information or answer questions concerning certain information that may be relevant to the case. One of these exceptions is the privilege against self-incrimination.
The Fifth Amendment to the U.S. Constitution states in part that no person "shall be compelled in any criminal case to be a witness against himself." The privilege stems from the concern that the Framers of the Constitution had for the rights of criminal defendants and is a defining feature of the adversarial system of justice. Under this system, the prosecution must prove the guilt of the defendant without forcing the defendant to confess or testify. By contrast, an inquisitorial system of criminal justice allows the prosecution to interrogate the defendant and extract confessions. The founders were wary that inquisitions could lead to abuse, such as torture and intimidation in pursuit of confessions.
The privilege against self-incrimination can be divided into two categories: the rights of a witness in any case, whether civil or criminal, and the rights of a defendant in a criminal case. The privilege against self-incrimination applies only to individuals and not to corporations or other business entities.
Witness Privilege
A witness in any case can refuse to answer questions that may yield an incriminating response at any point in any civil or criminal proceeding. This includes pretrial proceedings, grand jury proceedings, legislative investigations, and administrative hearings. A witness called to testify at any proceeding must appear at the proceeding and be sworn in (promise to tell the truth) before the witness may claim the privilege. Failure to appear can result in a citation for contempt of court.
A witness may refuse to answer questions or give documentary evidence only if the answer or document would incriminate the witness. An answer is considered self-incriminating if it would lead to criminal liability in any jurisdiction. The answer need only furnish a link in the chain of circumstantial evidence necessary for a conviction (Blau v. United States, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170 [1950]). The answer does not have to be one that would be admissible as evidence in a criminal trial.
A judge must decide whether a witness declaring the privilege is entitled to it. This decision can be difficult because the judge does not know what the witness will say. The judge must consider the implications of the question in the setting in which it is asked, in determining whether the answer may incriminate the witness (Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 [1951]).
The privilege does not allow a witness to refuse to answer a question because the response may expose the witness to civil liability, social disgrace, loss of status, or loss of private employment. A witness may not claim the privilege on the grounds that an answer or document may incriminate a third party: it may be declared only by the witness for the witness.
If the statute of limitations has expired on a crime that the witness may have committed, the witness cannot claim the privilege. Because no prosecutor would be able to prosecute the witness for the crime, the witness would not be implicating herself in a crime, and the privilege would be unnecessary.
In some criminal cases, a prosecutor may grant to a witness immunity from prosecution. This immunity comes in two forms: transactional and testimonial. Transactional immunity gives the witness immunity from prosecution for the criminal acts to which the witness refers in her statements. Testimonial immunity merely prevents the prosecution from using the statements the witness makes in a subsequent prosecution of the witness. Prosecutors have the right to grant only testimonial immunity and thereby force witnesses to testify. If the witness refuses to testify after being given testimonial immunity, she could be jailed for contempt of court. Furthermore, if a witness with testimonial immunity testifies falsely, the false statements may be used against the witness in a subsequent prosecution for perjury.
A witness who has had incriminating documents seized from his possession pursuant to a valid search warrant cannot claim the privilege against self-incrimination. This is because the privilege is basically concerned with preventing compelled testimony. The Fourth Amendment, which applies to search warrants, is concerned with privacy rights, not forced testimony. Even if incriminating evidence is forcibly taken from a witness pursuant to a search, the witness cannot claim the privilege against self-incrimination because the privilege is not relevant to the law of search warrants. If incriminating evidence is found but the search warrant was invalid, the evidence may be excluded from a subsequent trial of the witness under the Fourth Amendment's exclusionary rule, but not under the Fifth Amendment's clause on self-incrimination.
By contrast, if police or prosecutors summon a witness to produce self-incriminating documents, the witness may claim the privilege because a summons to produce documents is similar to a demand for testimony (Curcio v. United States, 354 U.S. 118, 77 S. Ct. 1145, 1 L. Ed. 2d 1225 [1952]). However, police and prosecutors may force a witness to relinquish self-incriminating documents if the records pertain to a regulated public matter, such as price records kept by businesses under price regulation statutes.
A witness may waive the privilege against self-incrimination either voluntarily or unwittingly. Witnesses testifying before a grand jury or in a civil or criminal trial have no right to warnings on the privilege against self-incrimination. Moreover, a person required to appear before a probation officer need not be apprised of the privilege, and any incriminating statements that the probationer makes may be used in a subsequent criminal prosecution. However, if a person is in police custody, he has the right to be informed of the right to be free from self-incrimination.
Criminal Defendant Privilege
The defendant in a criminal case has all the privileges that a witness has, and more. A defendant may refuse to answer questions that may yield incriminating responses. This includes the right to remain silent upon arrest. A self-incriminating statement made by a defendant who is in police custody is not admissible in court unless the defendant made the statement voluntarily. Generally, a person is in police custody if she or he is not free to leave the presence of police officers.
Any incriminating statement that a defendant makes while in police custody is considered involuntary unless he or she has already been apprised of his or her Miranda rights. Miranda rights are the set of rights and warnings that police must read to an arrestee. One of these rights is the right to remain silent. A reading of Miranda rights also informs the arrestee that anything the arrestee says may be used against her in court.
Police officers must read Miranda rights to a criminal suspect who is in custody before asking questions because custodial interrogation is inherently coercive. The reading of Miranda rights ensures that a defendant who waives the privilege against self-incrimination does so voluntarily. There are some exceptions to the general rule that a police officer must read Miranda rights before questioning a suspect. If, for example, a police officer needs to know the location of a loaded weapon, the officer may ask a handcuffed suspect where the gun is located without reading Miranda rights to the suspect. The suspect's answer could later be used in court against her.
In some cases an interrogation may be so coercive that it violates the privilege against self-incrimination even if the suspect waived Miranda rights or was not in custody. In determining whether an interrogation was inherently coercive, a court may consider such characteristics as the suspect's age, sex, state of health, education, or level of intoxication.
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.
If a defendant chooses not to testify, the prosecutor may not comment about that choice during trial. If a defendant does testify in court, he loses the privilege against self-incrimination. The prosecution may cross-examine the defendant concerning the crime charged as well as other crimes, and the court will compel the defendant to answer.
The Supreme 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.
A defendant may be ordered to submit to a pretrial psychiatric test, but most courts admit into trial only the information obtained at such examinations that relates to the competency of the defendant to stand trial. Some courts allow the information from psychiatric tests to prove or disprove a defendant's sanity. Additionally, a defendant can be compelled by court order to try on clothing to see if it fits; give samples of blood, hair, and voice; participate in an identification lineup; and provide fingerprints. Like any witness, a defendant cannot be required to produce incriminating documents. Police and prosecutors try to gain possession of such documents through the use of search warrants.
See: Adversary System; Criminal Law; Criminal Procedure; Miranda v. Arizona; Search and Seizure.
