Also known as: self incrimination privilege · privilege against self-incrimination · self-incrimination · Fifth Amendment privilege · right against self-incrimination
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that prevents the government from compelling a person to provide testimonial evidence that could be used against the person in a criminal prosecution. The protection applies in both federal and state proceedings and extends to witnesses as well as defendants. It covers only communications that reveal the contents of the mind and does not reach physical evidence or nontestimonial acts.
Stephanie testified on direct about revenue calculations and occupancy figures at the hotel. On cross-examination counsel asked whether she had skimmed cash tips and failed to report the income. Stephanie's counsel asserted the privilege. The court sustained the objection because the inquiry addressed only character for truthfulness.
Federal agents took Leo into custody at the station and questioned him for hours about a data breach. They never advised him of his rights to remain silent or to counsel. Leo made incriminating statements that the government later sought to introduce at trial.
Select any source to read its text and confirm it supports the definition.
Carla was subpoenaed to testify in a state mortgage-fraud trial about her own role in preparing income statements. She feared her answers could lead to criminal charges against her. The court permitted her to refuse to answer the incriminating questions.
After a car crash, officers directed a physician to draw a blood sample from an unconscious driver without consent or a warrant. The sample was later tested for alcohol content and offered at trial. The driver objected on self-incrimination grounds, but the objection was overruled because the evidence was physical rather than testimonial.
A grand jury subpoenaed a target to testify about corporate records. The government offered use and derivative-use immunity. The witness still refused, claiming the immunity was insufficient to protect against all possible uses of the testimony.
Two defendants were tried together for robbery. The government introduced a nontestifying codefendant's confession that implicated the other defendant by name. The trial court instructed the jury to consider the confession only against the declarant.
Yes. The privilege protects any person whose answers could reasonably tend to incriminate her in a future criminal prosecution. It is not limited to defendants or to those already under indictment.
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Yes. Forcing a person to enter a passphrase communicates knowledge and control that comes from the mind. That act is testimonial and therefore protected when it would be incriminating.
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Yes. The privilege does not excuse appearance. The witness must appear, take the oath, and then assert the privilege on a question-by-question basis.
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No. A witness who testifies on another matter does not waive the privilege for testimony that relates only to character for truthfulness.
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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…