Also known as: Fifth Amendment privilege against self-incrimination · privilege against compelled self-incrimination · 5th Amendment self-incrimination privilege · self-incrimination privilege
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that prevents the government from forcing individuals to provide testimony that could be used against them in a criminal prosecution. The protection applies during custodial interrogation and requires warnings before statements may be admitted. It extends only to natural persons and covers only testimonial evidence that creates a real risk of criminal liability.
Officers transported Felipe Figueroa to the station after spotting him near a suspected chop shop and placed him in a locked interview room. They questioned him at length about vehicle identification numbers. Because no warnings were given before the custodial interrogation, any statements obtained cannot be introduced at trial.
State university officials summoned Fatima Flores to her campus office and questioned her for ninety minutes about falsified grants while warning that refusal could lead to termination and criminal referral. The officials were state actors. The Fifth Amendment privilege therefore barred use of her statements in a later criminal prosecution.
Select any source to read its text and confirm it supports the definition.
A federal grand jury subpoenaed Fabian Flynn to testify about bid rigging. He invoked the privilege but received no immunity and was compelled to answer questions that tied him to cash payments. Prosecutors may not introduce those answers in a later bribery trial.
Floyd Franklin faced a first-degree murder charge carrying a possible death sentence. He accepted a guilty plea to second-degree murder after learning the maximum penalty would be life imprisonment. The plea was not compelled under the Fifth Amendment because the statute merely offered a choice between penalties.
A grand jury subpoenaed Fernando Farrell to produce business records of a suspected tax evasion scheme. The records themselves were not testimonial. The Fifth Amendment privilege therefore did not bar their production even though they might lead to further investigation.
A state trooper stopped Faith Fitzgerald for weaving and asked her whether she had been drinking. The stop occurred on the roadside with the patrol car lights flashing but no formal arrest. Because the encounter was not custodial, the Fifth Amendment privilege did not require warnings before the questions.
The privilege is personal to natural individuals. It does not extend to corporations or to their custodians when acting in a representative capacity.
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Warnings are required before any statement obtained during custodial interrogation may be admitted. The warnings must inform the suspect of the right to remain silent, that anything said can be used in court, the right to an attorney, and the right to appointed counsel if indigent.
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Only testimonial evidence that would tie the witness to a crime or furnish a lead to such evidence is protected. Physical evidence such as handwriting or voice exemplars and refusal to take a blood-alcohol test are non-testimonial and fall outside the privilege.
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No. The privilege may be invoked only when there is a real and appreciable risk of criminal liability. Exposure to civil liability alone does not support invocation.
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…to the innocent as well as to the guilty. IV Our decision in Malloy v. Hogan , 378 U.S. 1 (1964), established that the Fifth Amendment privilege against self-incrimination is incorporated in the Due Process Clause of the Fourteenth Amendment and is thus applicable to the States. Our holding today is that the prosecution may not use statements, whether…