Also known as: rights against self-incrimination · right against self incrimination · privilege against self-incrimination · Fifth Amendment privilege
Written by attorneys — see sources 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.
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.
Petitioner Schmerber and a companion had been drinking at a tavern and bowling alley on November 12, 1964. Petitioner was driving from the bowling alley about midnight when the car skidded, crossed the road, and struck a tree. Both petitioner and his companion were injured and taken to a hospital for treatment. A police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath and testified that petitioner's eyes were bloodshot, watery, and sort of a glassy appearance. The officer saw petitioner again at the hospital within two hours of the accident and noticed similar symptoms of drunkenness. He thereupon informed petitioner that he was under arrest and that he was entitled to the services of an attorney, that he could remain silent, and that anything he told the officer would be used against him in evidence. At the direction of a police officer, a blood sample was then withdrawn from petitioner's body by a physician at the hospital. The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication. The report of this analysis was admitted in evidence at the trial. Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test. Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor. The Appellate Department of the California Superior Court rejected petitioner's contentions and affirmed the conviction. The Supreme Court granted certiorari.
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.
…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 of confrontation and examination, and the privilege against self-incrimination
…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 by in effect forcing a defendant in a criminal action to testify in his own behalf. "Nevertheless, although one should guard
…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 Rights
…of religion). But others did not. See, e.g., Hurtado , supra (grand jury indictment requirement); Twining , supra (privilege against self-incrimination). Finally, even when a right
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.
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.