Also known as: 5th Amendment privilege · Fifth Amendment's privilege · privilege against self-incrimination · self-incrimination privilege · pleading the Fifth
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional protection against being compelled to provide testimonial evidence that could be used against oneself in a criminal case. It applies whenever government compulsion seeks potentially incriminating answers and requires a valid assertion to prevent waiver.
Frank Fisher testified on direct about his business dealings. On cross-examination the prosecutor asked whether Fisher had previously falsified tax returns, a matter that could expose him to criminal liability. Fisher invoked the Fifth Amendment privilege. The court sustained the objection because the inquiry related solely to character for truthfulness.
Floyd Franklin was detained in a police station conference room for hours by armed officers who questioned him about a data breach and discouraged contact with counsel. Franklin gave a detailed statement. The court suppressed the statement because no warnings were given before the custodial interrogation.
Select any source to read its text and confirm it supports the definition.
Farid Farahani appeared before a state ethics commission investigating contractor kickbacks. The commissioner threatened contempt and pension loss if Farahani refused to answer. Farahani invoked the Fifth Amendment privilege. The state court dismissed the resulting contempt charge because the privilege binds state proceedings.
Freya Freeman faced a capital charge and was offered a reduced sentence in exchange for a guilty plea. She accepted after being told the alternative was a possible death sentence. The court upheld the plea because the choice was not the product of unconstitutional compulsion.
Fiona Foster was arrested for driving under the influence. Officers directed a physician to draw her blood without a warrant or her consent. The court admitted the blood-alcohol results because the extraction produced only physical evidence rather than compelled testimony.
Felix Franco was subpoenaed before a federal grand jury and granted use immunity. He then answered questions about a bribery scheme. The court later permitted prosecution because the government proved its evidence was derived from sources independent of the immunized testimony.
Yes. The privilege is incorporated through the Fourteenth Amendment and binds state officials and courts. A person may not be punished by a state for a good-faith assertion of the privilege.
A witness does not waive the privilege for testimony that relates only to character for truthfulness. The privilege remains available on cross-examination when the question seeks potentially incriminating answers on that collateral topic.
Yes. Failure to assert the privilege when answering potentially incriminating questions waives the protection. Later use of those answers in a criminal case is permitted unless the answers were compelled over a valid claim.
No. The privilege covers only testimonial communications. Physical evidence obtained without compulsion to speak is not protected even if it tends to incriminate.
…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…