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 — see sources 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.
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.
In 1959, petitioner Brady was charged with kidnapping in violation of 18 U.S.C. § 1201(a). The indictment charged that the victim of the kidnapping was not liberated unharmed, so Brady faced a maximum penalty of death if the jury recommended it. Represented by competent counsel throughout, Brady first elected to plead not guilty. He made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial because the trial judge was unwilling to try the case without a jury. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, Brady changed his plea to guilty. The trial judge twice questioned Brady as to the voluntariness of his plea before accepting it. Brady was sentenced to fifty years' imprisonment, later reduced to thirty years. In 1967, Brady sought relief under 28 U.S.C. § 2255, claiming that his plea of guilty was not voluntarily given because the statute operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. He also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure. After a hearing, the District Court for the District of New Mexico denied relief. The District Court found that Brady's counsel did not put impermissible pressure on him to plead guilty and that no representations were made with respect to a reduced sentence or clemency. The court determined that Brady decided to plead guilty when he learned that his codefendant was going to plead guilty. The court concluded that the plea was voluntarily and knowingly made. The Court of Appeals for the Tenth Circuit affirmed, determining that the District Court's findings were supported by substantial evidence and specifically approving the finding that Brady's plea of guilty was voluntary. The Supreme Court granted certiorari to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of United States v. Jackson.
View caseA 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.
In December 1970, federal agents obtained a search warrant for respondent John Calandra's place of business, the Royal Machine & Tool Co. in Cleveland, Ohio, authorizing the seizure of bookmaking records and wagering paraphernalia in connection with an investigation of suspected illegal gambling operations. The supporting affidavit included information from confidential informants, physical surveillance by FBI agents, and court-authorized electronic surveillance. On December 15, 1970, the agents conducted a four-hour search of the two-story building, spending more than three hours in Calandra's office on the second floor. Although the search yielded no gambling paraphernalia, an agent discovered a card among promissory notes showing periodic payments by Dr. Walter Loveland to Calandra. Believing this to be a loansharking record related to an ongoing investigation of extortionate credit transactions under 18 U.S.C. §§ 892, 893, and 894, the agent seized the card along with company books and records, stock certificates, and address books. On March 1, 1971, a special grand jury was convened in the Northern District of Ohio to investigate possible loansharking activities. The grand jury issued a subpoena to Calandra to question him based on the seized evidence. Calandra appeared on August 17, 1971, but refused to testify, claiming his Fifth Amendment privilege against self-incrimination. The Government applied for transactional immunity under 18 U.S.C. § 2514, prompting Calandra to seek a postponement to prepare a suppression motion. Calandra moved under Federal Rule of Criminal Procedure 41(e) for suppression and return of the seized evidence, contending the affidavit was insufficient and the search exceeded the warrant's scope. Following a hearing on August 27, 1971, at which Calandra stipulated he would refuse to answer questions based on the materials, the District Court on October 1, 1971, ordered the evidence suppressed and returned and ruled that Calandra need not answer any grand jury questions based on the suppressed evidence. The Court of Appeals for the Sixth Circuit affirmed. The Supreme Court granted certiorari.
View caseA 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.
On the evening of March 31, 1980, Trooper Williams of the Ohio State Highway Patrol observed respondent's car weaving in and out of a lane on Interstate Highway 270. After following the car for two miles, Williams forced respondent to stop and asked him to get out of the vehicle. When respondent complied, Williams noticed that he was having difficulty standing. At that point, Williams concluded that respondent would be charged with a traffic offense and therefore his freedom to leave the scene was terminated. Williams then asked respondent to perform a field sobriety test, commonly known as a balancing test, which respondent could not do without falling. While still at the scene of the traffic stop, Williams asked respondent whether he had been using intoxicants. Respondent replied that he had consumed two beers and had smoked several joints of marijuana a short time before. Respondent's speech was slurred, and Williams had difficulty understanding him. Williams thereupon formally placed respondent under arrest and transported him in the patrol car to the Franklin County Jail. At the jail, respondent was given an intoxilyzer test to determine the concentration of alcohol in his blood. The test did not detect any alcohol whatsoever in respondent's system. Williams then resumed questioning respondent to obtain information for the Alcohol Influence Report. Respondent answered affirmatively a question whether he had been drinking. When then asked if he was under the influence of alcohol, he said, "I guess, barely." Williams next asked respondent to indicate on the form whether the marihuana he had smoked had been treated with any chemicals. In the section of the report headed "Remarks," respondent wrote, "No ang[el] dust or PCP in the pot. Rick McCarty." At no point in this sequence of events did Williams or anyone else tell respondent that he had a right to remain silent, to consult with an attorney, and to have an attorney appointed for him if he could not afford one. Respondent was charged with operating a motor vehicle while under the influence of alcohol and/or drugs in violation of Ohio Rev. Code Ann. §4511.19, a first-degree misdemeanor punishable by fine or imprisonment for up to six months with mandatory incarceration for a minimum of three days. Respondent moved to exclude the incriminating statements he had made to Trooper Williams regarding his consumption of alcohol and marijuana on the ground that he had not been informed of his constitutional rights prior to his interrogation. When the trial court denied the motion, respondent pleaded "no contest" and was found guilty. He was sentenced to 90 days in jail, 80 of which were suspended, and was fined $300, $100 of which were suspended. On appeal to the Franklin County Court of Appeals, the court rejected respondent's constitutional claim and affirmed his conviction, relying on a prior decision by the Ohio Supreme Court holding that the rule announced in Miranda is not applicable to misdemeanors. The Ohio Supreme Court dismissed respondent's appeal on the ground that it failed to present a substantial constitutional question. Respondent then filed an action for a writ of habeas corpus in the District Court for the Southern District of Ohio, which dismissed the petition. A divided panel of the Court of Appeals for the Sixth Circuit reversed. The Supreme Court granted certiorari.
View caseThe privilege is personal to natural individuals. It does not extend to corporations or to their custodians when acting in a representative capacity.
Supporting sources
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.
Supporting sources
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.
Supporting sources
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.
Supporting sources