Also known as: self incrimination clause · self-incrimination · Fifth Amendment self-incrimination · 5th Amendment privilege
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional command that no person shall be compelled in any criminal case to be a witness against himself. The clause bars the government from forcing an individual to provide testimonial evidence that could be used to incriminate that person in a criminal proceeding.
Select any source to read its text and confirm it supports the definition.
Solomon Silver testified on direct examination about revenue calculations at his company. On cross-examination the opposing counsel asked whether Silver had previously skimmed cash from employee tips and failed to report the income on his tax returns. Silver's counsel objected and asserted the privilege. The court sustained the objection because the proposed question related only to character for truthfulness.
Sebastian Santos was arrested and taken to a station house. Officers questioned him for two hours about a suspected fraud scheme without advising him of his rights. Santos made incriminating statements during the session. The statements are inadmissible at trial because no warnings were given before the custodial interrogation began.
Sylvia Santos was called as a witness in a state criminal trial. She refused to answer questions that would link her to an alleged theft. The prosecutor argued the privilege did not apply in state court. The trial court correctly sustained the invocation because the privilege binds the states.
Sofia Stern received a subpoena requiring her to produce personal financial records that would reveal unreported income. She moved to quash the subpoena on self-incrimination grounds. The court granted the motion in part because the compelled production would force Stern to disclose information that could lead to criminal tax liability.
Sasha Stone was arrested for driving while intoxicated. Officers directed a physician to draw a blood sample without her consent and without a warrant. Stone moved to suppress the results. The court denied the motion because the extraction of blood is physical evidence rather than testimonial communication.
Santiago Sanchez was tried for theft in state court. The judge instructed the jury that it could consider Sanchez's decision not to testify as evidence of guilt. Defense counsel did not object. On appeal the instruction is plain error because it directly violates the privilege against self-incrimination.
No. The clause protects against compelled testimonial communications in any context where the answers might later be used in a criminal prosecution. It applies during custodial interrogation, grand jury proceedings, and administrative hearings when the risk of criminal liability is real.
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A witness does not waive the privilege against self-incrimination merely by testifying on another matter. The privilege remains intact for questions that relate only to the witness's character for truthfulness under Rule 608.
…against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation. II We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came…
…be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment
…applied in Gault notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination
…distinctions between civil and criminal cases. In Malloy v. Hogan, supra , the Court rejected Palko 's discussion of the self-incrimination clause. Respectfully, we reject the prior dicta regarding jury trial in criminal cases. The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the…
…shields one charged with crime. Indeed, a by-product of such abuse might well be also to undermine the privilege against self-incrimination
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No. The privilege is personal to natural individuals and does not extend to corporations or partnerships, nor to their custodians when acting in a representative capacity.
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No. The clause protects only testimonial communications. Physical evidence such as blood samples or handwriting exemplars may be compelled because they do not require the suspect to communicate facts from the mind.
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No. The clause is violated only by the use at trial of compelled testimony itself. Physical evidence obtained as a result of a voluntary but unwarned statement is admissible because the clause protects against testimonial compulsion, not the fruits of nontestimonial evidence.
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