self-incrimination

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Self-incrimination is the intentional or unintentional act of providing information that will suggest your involvement in a crime, or expose you to criminal prosecution.

The Fifth Amendment provides protection to individuals from being compelled to incriminate themselves. According to this Constitutional right, individuals have the privilege against self-incrimination. They can refuse to answer questions, refuse to make potentially incriminating statements, or refuse to testify at a trial in any criminal case. This right is applicable to the States through the Fourteenth Amendment.

Constitutional Privilege Against Self-Incrimination

Privilege Limitations:

This privilege only protects individuals. Artificial entities like companies, partnerships, and LLPs cannot assert this privilege. The exception to this is a sole proprietorship.

Custodians of corporate records cannot refuse to provide records, even if such materials may incriminate custodians themselves.

The privilege only protects testimonial evidence like statements admitting guilt. Non-testimonial physical evidence like blood and DNA tests, handwriting samples, or fingerprints are not protected.

The privilege allows an individual to reject producing or turning over incriminating documents that constitute self-incriminating testimony even if that person is served with a subpoena for doing so. The privilege does not prevent the use of some documents, like incriminating: 

  • documents found by police during search or seizure with a valid warrant (e.g., a voluntarily written diary which has criminal act records), and/or 
  • business records prepared voluntarily and required by law to keep (e.g., tax returns proving fraud). 

However, the government may not compel the individual to write a diary, because the diary is testimonial in nature and the contents are similar to testimony; see Schmerber v. California, 384 U.S. 757 (1966).

If an individual’s business is inherently suspected of a crime, that person can refuse to register; see Marchetti v. United States, 390 U.S. 39, 52 (1968).

The privilege usually applies in criminal procedure. But it may extend to a witness in any proceeding if their testimony provides a reasonable possibility of incriminating oneself in future criminal proceedings, even if the testimony is made in a civil procedure. However, if the civil records are maintained for administrative purposes as public records, the privilege does not apply. 

Federal Protections Against Self-Incrimination 

In addition to the protections created by the Fifth Amendment, other federal laws also provide protections related to self-incrimination.

  • In Malloy v. Hogan, 378 U.S. 1 (1966), the Supreme Court held, "When determining if state officers properly obtained a confession, one must focus on whether the statements were made freely and voluntarily without any direct or implied promise or improper influence." Malloy also incorporated the Fifth Amendment right against self-incrimination against the states.
  • In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that at trial, if the accused invokes his Fifth Amendment right not to self-incriminate, neither the prosecution nor the judge may tell the jury that that silence is evidence that the defendant is making an admission of guilt. 
  • In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that "when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized," therefore finding self-incrimination protections in the Fourth Amendment. If the individual is not made aware of his rights (including the right to an attorney and the right to remain silent), then self-incriminating statements the individual makes will be inadmissible in court. See more about Miranda warnings below. 
  • In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court used a narrow interpretation of the right not to testify against oneself. Here, the petitioner was the driver of a car involved in a car crash. After being brought to the hospital, the police had the hospital draw blood; after analyzing the blood, the police found that the petitioner had a blood-alcohol level that was above the legal limit, and so the petitioner was convicted for Driving Under the Influence (DUI). The Court held that while the police could not force the petitioner to testify against himself, the blood test evidence, while incriminating, "was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner." Therefore, the blood sample was admissible and the Court upheld the petitioner's conviction. 
  • Under 18 U.S. Code § 6002, a trial witness who has been granted immunity and refuses to testify, based on the right not to self-incriminate, may still be forced to testify by the presiding judge. Under that statute, if the witness refuses the judge's order, the witness may be held in contempt of court. 

Tax Issues

The same protections that exist for typical criminal matters may not exist in other matters, particularly those related to tax issues with the Internal Revenue Service (IRS).

The Supreme Court held in Beckwith v. United States, 425 U.S. 341 (1976) that the same protection does not apply to a non-custodial interview, such as one held by IRS agents. The non-custodial interview in Beckwith was one that was held at a private home. The Court held that this was not a police-dominated atmosphere; as such, there was not the usual need for safeguards to counteract the compulsion which exists in a custodial environment. 

However, the questioned individual may still receive some protections in non-custodial tax matters. When someone is being interviewed by IRS agents with regard to criminal tax matters, the IRS agent is required to provide the questioned individual with appropriate warnings, see United States v. Leahey, 434 F.2d 7 (lst Cir. 1970).

Privilege Invoking:

Defendant: 

A defendant invokes privilege by refusing to take the stand. Thus, the court cannot compel them to testify, and the prosecutor cannot take their failure to take the stand to the jury’s attention. If the prosecutor made a comment, it would trigger the harmless-error test. 

Witness: 

A witness can only invoke the privilege in response to a specific question that may incriminate oneself if they answer that question. However, a defendant has a right to confrontation provided by the Sixth Amendment. If the invocation may prevent adequate cross-examination, it may not be invoked.

Privilege invocation cannot impose a burden on individuals. If the state penalizes individuals for not cooperating with authorities or making testimony, it’s unconstitutional. 

Privilege Waiving: 

If a defendant takes the witness stand or a witness discloses self-incriminating information when answering specific questions, then the privilege is waived. Once waived, individuals cannot assert the privilege again when the prosecutor cross-examines their testimony.

Pretrial Privilege

Miranda warnings in Interrogation:

Any incriminating statement (e.g. confession or other inculpatory statements) of a suspect obtained as the result of custodial interrogation (questions asked by known police or other law-enforcement officers after being taken into custody) is inadmissible and should be suppressed in the subsequent trial, see Miranda v. Arizona, 384 U.S. 436 (1966). However, if the suspect was informed of their Miranda rights, which gives procedural protection to privilege against self-incrimination, but they still made that statement, the statement is admissible, as their rights are waived. If the suspect made two statements, one before the Miranda warning and the other after it, the second confession is admissible unless “the circumstances indicate that the substance of Miranda has been drained away.” See also Oregon v. Elstad, 470 U.S. 298 (1985). The suppression of incriminating statements is not automatic.

Fruit of the poisonous tree - tainted confessions - include physical derivative evidence which is obtained as a result of a non-Mirandized confession, and the second confession is admissible if the confession is not coerced, see United States v. Patane, 542 U.S. 630 (2004). Failure to give Miranda warnings does not violate a suspect’s right. It’s the use of a statement obtained this way at trial that violates. See Chavez v. Martinez, 538 U.S. 760 (2003).

Exceptions to Miranda Warnings:

The Supreme Court has narrowed the scope of Miranda warnings. Here are exceptions:

Undercover Police:
Routine Booking:
  • Police can ask a suspected drunken driver routine biographical questions without giving the driver Miranda warnings at first.
Public Safety:
  • Police do not need to give Miranda warnings before questioning a suspect if public safety is at risk. 
Waiver: 

After properly given, Miranda rights can be waived. The government has the burden of proof to demonstrate by a preponderance that the waiver was made knowingly and voluntarily by the suspects. The suspect’s silence is not enough to waive their Miranda rights. 

Trial Privilege

Scope:

A defendant and witness can refuse to answer questions or testify at trial if their statements will incriminate him in criminal proceedings. But the prosecutor can use prior conflicting statements to impeach the defendant once the defendant “opens the door” by taking stands.

Immunity:

If the prosecutor grants immunity to individuals at trial or before a grand jury, individuals then are compelled to testify. The testimony is not used against testified individuals in a subsequent prosecution but serves other purposes.

Transactional Immunity:

This is a total immunity that gives full protection to witnesses from any prosecution related to their testimony.

Use and Derivative-Use Immunity:

This precludes the prosecutor from using the witness’s testimony or evidence derived from the testimony against the witness.

Federal and State Immunity:

Testimonies of individuals, who get immunities in one jurisdiction, cannot be used by another jurisdiction to prosecute those individuals. Therefore, if an individual gets immunity in Federal court, their testimony will be precluded admission in a State proceeding.

[Last updated in June of 2022 by the Wex Definitions Team]