self-incrimination

Incrimination of oneself, especially by one's own testimony in a criminal prosecution.

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” The right applies to investigatory processes, pretrial disclosures, and trials themselves, as well as to testimony in civil, administrative, and legislative proceedings. Built on the common‐law right to silence, the self‐incrimination protection has to be asserted to be realized.

Contemporary Supreme Court interpretation of this Fifth Amendment provision dates from Twining v. New Jersey (1908), where the Court argued that protection from compulsory self‐incrimination is not a fundamental right but an important rule of evidence. Current interpretation builds on the Court's rejection of Twining in Malloy v. Hogan (1964), which applied the protection against compulsory self‐incrimination to the states (see Incorporation Doctrine). The Warren Court reinforced this incorporation of the Fifth Amendment when it ruled in Miranda v. Arizona (1966) that protection from compulsory self‐incrimination required police to remind criminal suspects of this procedural guarantee.

Generally, the Supreme Court has expanded the protection provided by the constitutional guarantee of a right to remain silent. This is especially obvious in the Court's application of the privilege against self‐incrimination to pretrial and noncriminal proceedings and the affirmative obligations included in the famous Miranda decision. These affirmative obligations are important because they cover almost all police interrogations of criminal suspects and because they specify procedures to protect the privilege against self‐incrimination.

These twentieth‐century developments are rooted in part in British legal history. For example, prior to the sixteenth century, forced oaths and confessions were excluded from trials, while by the late eighteenth century, confessions forced before trial were also excluded. As these rules of evidence took hold in American law, the Supreme Court relied on the voluntariness test to judge whether undue pressure to waive Fifth Amendment protections had been brought to bear on criminal defendants. The Supreme Court's Miranda decision added a new dimension to these efforts to ensure that defendants were not compelled to waive the privilege against self‐incrimination.

The Court's decision in Miranda called considerable attention to the privilege against self‐incrimination, attention that earlier was engendered when Senator Joseph McCarthy conducted congressional hearings on Communists in the United States. Several witnesses at the McCarthy hearings refused to testify on grounds that they were likely to incriminate themselves. These assertions were frequently interpreted as admissions of guilt and the witnesses labeled “Fifth Amendment Communists” (see Communism and Cold War).

When the state wants or needs the testimony of individuals who assert their privilege against self‐incrimination, particular inducements can be exercised. These include two grants of immunity, transactional and use. The former guarantees that the witness will not be prosecuted for anything that transacts from his or her testimony, while the latter protects the witness against prosecutorial use of any evidence drawn from his or her testimony (see Fifth Amendment Immunity).

Regardless of the controversies that have surrounded the privilege against self‐incrimination, it remains an important right in criminal due process. The right builds on common‐law rules of evidence, reflects our reluctance to compel anyone to incriminate himself, and remains an integral part of our adversarial system of justice.

See also Due Process, Procedural.

— Susette M. Talarico

For more information on self-incrimination, visit Britannica.com.

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 when the subject matter of the testimony is not likely to incriminate her 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 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 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]).

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.

See: Alcohol; Criminal Law; Criminal Procedure; Exclusionary Rule; Lineup.

Being forced or coerced to testify against oneself. Self-incrimination is prohibited by the Fifth Amendment to the United States Constitution.

Criminal procedure
Criminal trials and convictions
Rights of the accused
Right to a fair trial  · Speedy trial
Jury trial  · Presumption of innocence
Exclusionary rule (U.S.)
Self-incrimination  · Double jeopardy
Verdict
Acquittal  · Conviction
Not proven (Scot.)  · Directed verdict
Sentencing
Mandatory  · Suspended  · Custodial
Dangerous offender (Can.)
Capital punishment  · Execution warrant
Cruel and unusual punishment
Post-conviction events
Parole  · Probation
Tariff (UK)  · Life licence (UK)
Miscarriage of justice
Exoneration  · Pardon
Related areas of law
Criminal defenses
Criminal law  · Evidence
Civil procedure
Portals: Law  · Criminal justice

Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.

United Kingdom law

The right against self-incrimination originated in England and Wales. In countries deriving their laws as an extension of the history of English Common Law, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination.

The Criminal Justice and Public Order Act 1994 amended the right to silence by allowing inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation (in other words the jury is entitled to infer that the accused fabricated the explanation at a later date, as he or she refused to provide the explanation during the time of the Police questioning. The jury is also free not to make such an inference)

Canadian law

In Canada, similar rights exist pursuant to the Charter of Rights and Freedoms. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c) states:

"11. Any person charged with an offence has the right ... c) not to be compelled to be a witness in proceedings against that person in respect of the offence..."

An important distinction in Canadian law is that this does not apply to a person who is not charged in the case in question. A person issued subpoena, who is not charged in respect of the offence being considered, must give testimony. However, this testimony cannot later be used against the person in another case. Section 13 of the Charter states:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence."

Legal definitions of Self-incrimination

• Barron's Law Dictionary (USA):

SELF-INCRIMINATION, PRIVILEGE AGAINST the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself which will subject him or her to an incrimination. This right under the Fifth Amendment (often called simply PLEADING THE FIFTH) is now applicable to the states through the due process clause of the Fourteenth Amendment, 378 U.S. 1,8, and is applicable in any situation, civil or criminal where the state attempts to compel incriminating testimony. (There are many caveats following this section.)

• Black's Law Dictionary (USA):

SELF-INCRIMINATION: Acts or declarations either as testimony at trial or prior to trial by which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as provisions in many state constitutions and laws, prohibit the government from requiring a person to be a witness against himself involuntarily or to furnish evidence against himself. (There are links to other related subjects: Compulsory self-incrimination; Link-in-chain; Privilege against self-incrimination.)

References

• Origins of the Fifth Amendment, by Levy, Leonard W. - Macmillan, New York. Reprint 1986. ISBN 0-02-919580-2 - Pulitizer Prize winner original edition 1969.

External links

• Text of Miranda v. Arizona

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