Also known as: privileges against compelled self-incrimination · Fifth Amendment privilege · self-incrimination privilege · privilege against self-incrimination
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection under the Fifth Amendment that shields individuals from being forced to provide testimonial evidence that could incriminate them in a criminal proceeding. The protection applies to the states through the Fourteenth Amendment and extends to any compelled act that communicates facts from the mind of the person. It does not cover physical evidence or nontestimonial acts.
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Parker Phillips takes the stand in a civil fraud trial and answers questions about his general reputation for honesty. On cross-examination the opposing lawyer asks about unrelated cash-handling practices that could expose Parker to tax liability. Parker invokes the privilege against compelled self-incrimination. The court sustains the objection because the new line of inquiry relates solely to character for truthfulness.
Paula Pierce is arrested at her home and placed in the back of a patrol car. Officers question her for thirty minutes about a suspected embezzlement scheme without giving any warnings. Paula makes incriminating statements about moving funds. The statements are later ruled inadmissible because the officers failed to advise her of the right to remain silent and the right to counsel.
Phuong Pham is called before a state grand jury investigating insurance fraud. She refuses to answer questions that would link her to the scheme. The prosecutor argues the privilege does not apply in state court. The court rejects that argument and sustains the refusal because the Fifth Amendment protection binds the states.
Priscilla Parks is ordered to provide a handwriting sample in a forgery investigation. She refuses, claiming the order violates her privilege. The court compels the sample because producing physical characteristics does not require her to communicate any testimonial fact from her mind.
Phoebe Park is subpoenaed before a grand jury and asserts the privilege. The government grants her use and derivative-use immunity. She must now answer the questions because the immunity eliminates any risk that her testimony could be used against her in a later criminal case.
Pavel Petrov faces state criminal charges and seeks to suppress statements obtained without warnings. The state argues the Fifth Amendment does not constrain state officers. The court applies the privilege to the state proceeding because the protection has been incorporated through the Fourteenth Amendment.
An act is testimonial when it requires the person to communicate facts from the contents of the mind, such as entering a passphrase that reveals knowledge and control. Physical acts like providing a handwriting sample or voice exemplar do not qualify because they do not convey any testimonial information.
Supporting sources
…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
A witness must appear and be sworn. The privilege is asserted on a question-by-question basis rather than as a blanket refusal to attend. Only after the witness is present can the court evaluate whether a particular answer would tend to incriminate.
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Testifying on another matter does not waive the privilege for testimony that relates only to the witness's character for truthfulness. The protection remains intact for questions that would require the witness to disclose potentially incriminating facts outside the scope of the direct testimony.
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A grant of use and derivative-use immunity removes the risk of incrimination and therefore eliminates the basis for invoking the privilege. The witness can then be compelled to answer because the testimony cannot be used against the witness in any subsequent criminal prosecution.
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