Also known as: privileges against self-incrimination · self-incrimination privilege · Fifth Amendment privilege · self-incrimination protection
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that prevents the government from compelling an individual to provide testimonial evidence that could be used against the individual in a criminal prosecution. The protection applies in federal and state proceedings and may be asserted in criminal, civil, grand jury, and administrative settings when a real risk of incrimination exists.
Piper Patel took the stand in a civil fraud trial to describe her company's fee disclosure practices. On cross-examination the opposing lawyer asked whether she had skimmed cash tips from employees, exposing her to potential tax fraud liability. Piper invoked the privilege. The court sustained the objection because her direct testimony on one subject did not waive the privilege for questions relating only to character for truthfulness.
Parker Phillips was placed in a locked interview room at the station and questioned at length about vehicle identification numbers. Officers never advised him of his right to remain silent or to have counsel. Parker made incriminating statements. The statements are inadmissible in a later prosecution because the privilege requires warnings before custodial interrogation begins.
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Preston Pratt was called before a state legislative commission and asked questions that could expose him to criminal liability. He refused to answer, asserting the privilege. The state may not compel the answers or use his refusal against him because the privilege applies to the states through the Fourteenth Amendment.
Pamela Phillips received a subpoena to testify before a grand jury about bid-rigging. She invoked the privilege. The government granted use and derivative-use immunity. Pamela must now answer because the immunity is coextensive with the privilege and prevents the government from using her testimony or its fruits against her.
Pierre Poulin was prosecuted in state court for a weapons offense. The state sought to introduce statements obtained during custodial interrogation without warnings. Pierre moved to suppress. The court applied the privilege because it is incorporated against the states and bars the use of unwarned custodial statements.
Patricia Patel, age twelve, faced a delinquency proceeding for theft. The court considered whether the privilege applied. The privilege attached because the proceeding carried the possibility of confinement and the Constitution requires the same safeguards that protect against compelled self-incrimination in adult criminal cases.
No. A witness who testifies on another matter does not waive the privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.
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Warnings are required before custodial interrogation. Custodial interrogation occurs when a person is taken into custody or otherwise deprived of freedom of action in any significant way and is questioned by law enforcement.
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Yes. The Fifth Amendment privilege against compelled self-incrimination is incorporated through the Fourteenth Amendment and applies to the states.
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Use and derivative-use immunity is coextensive with the privilege and sufficient to compel testimony. Transactional immunity is not required.
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Yes. The privilege may be asserted in any proceeding, including civil, legislative, administrative, or grand-jury settings, when the testimony would furnish a link in the chain of evidence needed to prosecute the witness for a crime.
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…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…