Also known as: self-incrimination claims · self incrimination claim · Fifth Amendment claim · privilege against self-incrimination
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that allows a person to refuse to provide testimonial evidence that could reasonably tend to incriminate the person in a criminal proceeding. The protection applies whether the person is a defendant or a witness and whether the proceeding is federal or state. It covers only communications that reveal the contents of the mind and does not extend to physical or nontestimonial acts.
Select any source to read its text and confirm it supports the definition.
Selena Singh testified on direct about her company's occupancy reports. On cross-examination the opposing lawyer asked whether she had skimmed cash tips from staff and failed to report the income. Selena invoked the privilege because the question concerned only her character for truthfulness. The court sustained the objection and barred the inquiry.
Federal agents subpoenaed Sophia Singh to enter a decryption passphrase for a server containing logs of alleged hacking. Sophia refused and moved to quash the subpoena. The court sustained the objection because entering the passphrase would communicate her knowledge and control of the server. That communication carried a real risk of tying her to criminal conduct.
Sydney Santos was arrested for driving while intoxicated. Officers directed a physician to draw her blood without a warrant. Sydney later moved to suppress the results on self-incrimination grounds. The court denied the motion because the blood sample was physical evidence rather than a testimonial communication.
Santiago Sanchez received a grant of use and derivative-use immunity before testifying before a grand jury. After the testimony the government prosecuted him using evidence developed independently of his statements. The court admitted the independent evidence because the immunity order satisfied the constitutional requirements.
Simon Stern made an unwarned statement during an illegal arrest. Agents later obtained a second statement after proper warnings. The court suppressed the second statement because it was the fruit of the initial violation. The self-incrimination claim succeeded on the derivative-evidence theory.
Sierra Santos was taken into custody and questioned for several hours about a suspected fraud scheme. Officers never advised her of her right to remain silent. The court excluded her resulting confession because the interrogation occurred without the required warnings. The self-incrimination claim barred use of the statement at trial.
Yes. The privilege protects any person compelled to give testimonial evidence that might tend to incriminate the person in a future criminal prosecution. It applies whether the person is a defendant or merely a witness and whether the proceeding is federal or state.
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Yes when the act communicates the person's knowledge and control of the device. The communication is testimonial because it reveals the contents of the mind. Courts therefore sustain objections to such demands absent adequate immunity.
…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. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, "that, where a 12-year-old child is charged with an act of stealing which renders him liable to…
…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
…Douglas’ trial the State called Loyd as a witness against him. An appeal was pending from Loyd’s conviction and Loyd invoked the privilege against self-incrimination
…of religion). But others did not. See, e.g., Hurtado , supra (grand jury indictment requirement); Twining , supra (privilege against self-incrimination
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Yes. A valid subpoena requires appearance and the taking of an oath. The witness may then assert the privilege on a question-by-question basis when a truthful answer would tend to incriminate the witness.
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No. The privilege is personal to natural individuals and does not extend to artificial entities or to custodians acting in a representative capacity.
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No. Refusal to submit to a blood-alcohol test is nontestimonial conduct. Admission of the refusal therefore does not violate the privilege even without prior warnings.
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