Also known as: absolute rights not to testify · right not to testify · privilege against self-incrimination
Written by attorneys · grounded in primary & secondary sources — see below
A Fifth Amendment protection that entitles a criminal defendant to refuse to take the witness stand at trial. The defendant need not invoke the privilege on a question-by-question basis or accept a grant of immunity to avoid testifying. No adverse inference may be drawn from the refusal.
Select any source to read its text and confirm it supports the definition.
Alfred Ashford faced trial on tax charges. Prosecutors sought to compel him to take the stand and answer questions about cash tips. Ashford's counsel asserted the absolute right not to testify. The court sustained the objection and excused him from the stand entirely.
Albert Allen was under indictment for bid rigging. Prosecutors sought to compel him to take the stand at trial and explain steering contracts. Allen declined to appear or answer any questions. The court upheld his absolute right not to testify and barred any use of his silence.
Aisha Ahmed faced trial on fraud charges. The government offered use immunity if she would testify about her role in the scheme. Ahmed declined the offer and remained off the stand. The court recognized her absolute right not to testify despite the immunity grant.
Ariana Azizi stood trial for narcotics distribution. Prosecutors sought to question her about a prior statement that could lead to additional evidence. Azizi refused to take the stand. The court honored her absolute right not to testify and excluded any inference from her silence.
Amber Alonzo was tried for robbery. The prosecutor asked the jury to infer guilt from her decision not to take the stand at trial. Defense counsel objected that the argument violated the absolute right not to testify. The court struck the comment and instructed the jury to disregard it.
Amelia Amari was indicted for embezzlement. The trial court instructed the jury that it could consider her decision not to testify as evidence of guilt. Defense counsel preserved the objection. The appellate court reversed the conviction because the instruction infringed the absolute right not to testify.
The absolute right belongs to the criminal defendant at trial and permits complete refusal to take the stand. Grand jury witnesses who are not yet indicted must invoke the privilege question by question and may receive immunity. The hornbook excerpt distinguishes the defendant's trial right from the more limited protection afforded other witnesses.
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No. The Fifth Amendment prohibits the government from commenting on a defendant's silence or suggesting that the jury may treat the refusal as evidence of guilt. The hornbook and essay excerpts confirm that any such instruction or argument violates the absolute right.
…from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any…
…safeguards applied in Gault notice of charges, right to counsel, the rights
…and constitutionally shields one charged with crime. Indeed, a by-product of such abuse might well be also to undermine the privilege against self-incrimination
…Douglas’ trial the State called Loyd as a witness against him. An appeal was pending from Loyd’s conviction and Loyd invoked the privilege against self-incrimination
…of religion). But others did not. See, e.g., Hurtado , supra (grand jury indictment requirement); Twining , supra (privilege against self-incrimination
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No. The Fifth Amendment privilege is personal to natural individuals and does not protect corporations or their custodians acting in a representative capacity.
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No. Requiring an express invocation would serve no purpose because neither a showing that testimony would not be incriminating nor a grant of immunity can force the defendant to speak.
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Yes. By testifying on another matter a witness does not waive the privilege against self-incrimination for testimony that relates only to character for truthfulness.
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