Also known as: rights against self-incrimination · right against self incrimination · privilege against self-incrimination · Fifth Amendment privilege
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that prevents the government from compelling a person to provide testimonial evidence that could be used against them in a criminal prosecution. The protection applies in any proceeding where answers might furnish a link in a chain of evidence leading to criminal liability. It is waivable and must be asserted to preserve the right in civil or administrative settings.
Select any source to read its text and confirm it supports the definition.
Renata Russo testified on direct examination about her role in preparing financial reports for a client. On cross-examination the opposing lawyer asked whether she had previously skimmed cash from employee tips and failed to report the income on her tax returns. Renata invoked her right against self-incrimination. The court sustained the invocation because the question addressed only her character for truthfulness.
Roland Rhodes was taken into custody by federal agents investigating procurement fraud. The agents questioned him for two hours in a locked interview room about his involvement in bid rigging. They never advised him of his right to remain silent or to have counsel. Roland later moved to suppress his statements on the ground that they were obtained in violation of his right against self-incrimination.
Ryan Roberts appeared before a state securities examiner investigating suspicious trades at his brokerage firm. The examiner threatened to revoke Ryan's license if he refused to answer questions about possible insider trading. Ryan invoked his right against self-incrimination. The state court ruled that the federal privilege applied and barred the state from imposing penalties for the assertion.
Rajesh Rao was ordered by police to provide a handwriting sample during a forgery investigation. He refused, claiming the order violated his right against self-incrimination. The court overruled the objection because the sample was physical evidence rather than testimonial communication.
Renee Rogers underwent a court-ordered psychiatric examination after conviction. The examiner asked questions about the offense without first advising her of the right to remain silent. The prosecution later sought to use the statements at sentencing to prove an aggravating factor. The court excluded the statements because they were obtained in violation of the right against self-incrimination.
Roberto Reyes was called before a state ethics commission investigating contractor kickbacks. He refused to answer questions that could expose him to criminal liability. The commission threatened contempt sanctions. The court held that the federal right against self-incrimination applied to the state proceeding and protected Roberto from punishment for the refusal.
Yes. The Fifth Amendment privilege binds state officials through the Fourteenth Amendment. A person may invoke the privilege in a state regulatory proceeding when answers could lead to criminal liability, and the state may not impose penalties such as license revocation for the assertion.
Yes. A subpoena alone does not constitute compulsion. A witness who appears and answers incriminating questions without asserting the privilege waives the protection, and the answers may be used in a later criminal prosecution.
…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
…Indeed, in the ensuing colloquy, see n. 3, infra , George Mason responded that the use of torture was prohibited by the right against self-incrimination contained in the Virginia Bill of
…of religion). But others did not. See, e.g., Hurtado , supra (grand jury indictment requirement); Twining , supra (privilege against self-incrimination
No. The privilege applies only to testimonial communications. Requests for physical exemplars such as handwriting or voice samples do not implicate the right against self-incrimination.
Yes. Testimony on another matter does not waive the privilege for questions that relate solely to the witness's character for truthfulness. The court must permit the invocation when the inquiry is limited to that collateral topic.
The answers may later be introduced in a criminal prosecution. A person must claim the privilege at the time of questioning in the civil matter. Failure to do so prevents later exclusion of the statements as compelled.