Also known as: selfinculpation · self-incrimination
Written by attorneys · grounded in primary & secondary sources — see below
Testimony or statements by which an individual implicates himself or herself in criminal conduct. The Fifth Amendment protects a person from being compelled to furnish such statements in any criminal case. The protection extends to state proceedings through the Fourteenth Amendment and applies whenever government compulsion seeks potentially incriminating testimony.
Santiago Sanchez testified on direct examination about revenue calculations at his firm. On cross-examination the opposing lawyer asked whether Santiago had skimmed cash tips and failed to report the income on his tax returns. Santiago's counsel objected and asserted that Santiago would invoke the privilege against self-incrimination because the question related only to character for truthfulness.
Solomon Silver was taken into a small windowless office by campus police and questioned for five hours about stolen exam answers. Officers never advised him of his right to remain silent or to have counsel present. Solomon eventually described selling the answers after being told his scholarship and visa status could be lost if he refused to cooperate.
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Sean Steele appeared before a state securities examiner investigating suspicious trades. The examiner warned that refusal to answer or assertion of any privilege could result in revocation of Steele's analyst license and referral for prosecution. Steele consulted counsel and then refused to answer potentially incriminating questions, invoking the federal privilege.
Steven Silva was subpoenaed to testify before a federal grand jury about bid-rigging. After the government obtained an order granting him use and derivative-use immunity, Silva answered questions that would otherwise have exposed him to bribery charges. The court later denied his motion to suppress the testimony because the immunity was coextensive with the privilege.
Sasha Stone and a co-defendant were tried jointly for conspiracy. The government introduced the co-defendant's confession that implicated Stone without calling the co-defendant as a witness. Stone's lawyer objected that the statement violated his client's confrontation rights and exposed him to the risk of self-inculpation through the co-defendant's words.
Simon Stern was arrested for driving under the influence after a collision. Officers directed a physician to draw a blood sample without Stern's consent and without first advising him of any rights. Stern later moved to suppress the results, arguing that the compelled production of his blood constituted protected self-inculpation, but the court held the evidence non-testimonial.
The Fifth Amendment privilege is personal to natural individuals and does not extend to artificial entities such as corporations or partnerships. Corporate custodians also cannot invoke the privilege when acting in a representative capacity. The protection therefore does not shield corporate records or testimony compelled from officers in that role.
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By testifying on another matter a witness does not waive the privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness. The privilege remains intact when the cross-examination question concerns an unrelated instance of conduct that would bear solely on general honesty.
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The Fifth Amendment privilege against compelled self-incrimination binds state officials through the Fourteenth Amendment. State regulators therefore may not impose penalties such as license revocation for a witness's good-faith assertion of the privilege in an administrative hearing.
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A subpoena to appear before a grand jury is not itself unconstitutional compulsion. The privilege is violated only when the government compels incriminating testimony over a valid claim of privilege or punishes a witness for refusing to answer after the privilege has been asserted.
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…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…