Also known as: nemo tenetur · nemo tenetur seipsum accusare · privilege against self-incrimination · right to silence
Written by attorneys · grounded in primary & secondary sources — see below
A foundational principle providing that no individual is compelled to furnish evidence that could be used against him in a criminal prosecution.
Naveen Nanda took the stand in a fraud trial and answered questions about business records. On cross-examination the prosecutor asked whether Nanda had previously falsified tax returns in an unrelated matter. Nanda invoked the privilege and refused to answer. The court sustained the objection because the inquiry concerned only character for truthfulness.
Nadia Novak appeared before a grand jury investigating a kickback scheme. Prosecutors asked whether she had met with a particular contractor on a specific date. Novak refused to answer, asserting that an affirmative response would furnish a lead to evidence tying her to the scheme. The court upheld the invocation because the testimony carried a realistic risk of criminal exposure.
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Naomi Norton was arrested for robbery and taken to the station. Officers questioned her about the crime without first advising her of the right to remain silent. Norton made incriminating statements that the government later sought to introduce. The court suppressed the statements because the warnings were required before custodial interrogation.
Nigel Nelson was called before a state legislative committee and threatened with contempt if he refused to answer questions about alleged bribery. Nelson invoked the privilege and declined to testify. When the state sought to punish him for the refusal, the court held that the federal privilege barred the contempt sanction.
Nathan Nguyen was arrested and given Miranda warnings. He stated he did not wish to discuss the robbery. Sixteen hours later a different officer administered fresh warnings, obtained a written waiver, and questioned Nguyen only about an unrelated drug transaction. Nguyen made statements that the government offered at trial. The court admitted the statements because officers had scrupulously honored the initial invocation.
Noah Nakamura's apartment was searched without a warrant and officers seized a notebook containing names and dates. Using the notebook the government located additional witnesses who testified against Nakamura at trial. Nakamura moved to suppress the testimony as fruit of the illegal search. The court granted the motion because the evidence was obtained by exploiting the constitutional violation.
The privilege remains available when the new questions relate solely to the witness's character for truthfulness. A witness does not waive the protection by testifying on unrelated matters.
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Testimony is incriminating if it would tie the witness to a crime or furnish a lead to evidence that could do so. The testimony need not itself establish guilt, but the risk must be of criminal rather than civil liability.
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The Fifth Amendment privilege is incorporated against the states through the Fourteenth Amendment. A state may not punish a person for invoking the privilege in a state proceeding that carries a realistic threat of criminal consequences.
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Officers must immediately cease questioning upon invocation. Later interrogation is permissible only if a substantial time gap has passed, fresh warnings are given, and the new questions concern a different offense.
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…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…