Also known as: witness against herself · witness against themselves · self-incrimination · privilege against self-incrimination
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection prohibiting the government from compelling an individual to provide testimony that could be used to incriminate that individual in a criminal proceeding. The protection extends to statements and acts that communicate facts from the mind of the witness.
Select any source to read its text and confirm it supports the definition.
Winston Ward received a grand jury subpoena in a federal fraud investigation. When asked to explain his role in preparing certain invoices, Ward declined to answer on the ground that any response would link him to criminal conduct. The court sustained the refusal because the Fifth Amendment bars compulsion of incriminating testimony in a criminal case.
Wendy Wu testified on direct examination about revenue calculations at her company. On cross-examination opposing counsel asked whether she had previously failed to report cash tips on her tax returns. Wu's counsel objected and asserted the privilege. The court sustained the objection because testimony on character for truthfulness does not waive the privilege against self-incrimination.
Warren Wu was taken into custody after a warehouse break-in. Detectives questioned him for two hours in a locked interview room without informing him of his rights. Wu eventually admitted hiding stolen goods. The statements were later ruled inadmissible because no warnings had been given before the custodial interrogation.
Winona Walsh was prosecuted in state court for embezzlement. The prosecutor sought to introduce her prior statements made during a state administrative hearing. Walsh objected that the statements had been compelled. The state court excluded the statements because the Fifth Amendment privilege applies to the states through the Fourteenth Amendment.
Wren Wallace received a subpoena and a grant of use immunity in a federal antitrust investigation. Wallace still refused to testify, arguing the immunity was insufficient. The court held Wallace in contempt because the grant of immunity adequately protected against use of the testimony and its fruits in any later criminal case.
Walker Valley Produce was ordered to produce documents in a regulatory proceeding concerning land use. The company's custodian refused to authenticate certain records, claiming the act would be incriminating. The court overruled the objection because the Fifth Amendment privilege does not extend to artificial entities or their representatives acting in an official capacity.
A witness may invoke the privilege when a reasonable person in the witness's position could apprehend that answering would furnish a lead to evidence of criminal conduct. The risk must be of criminal liability rather than mere civil exposure. Courts apply an objective standard that focuses on whether the question targets the witness's own conduct and creates a plausible criminal risk.
Supporting sources
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. The rule preserves the constitutional protection when the cross-examination inquiry concerns collateral matters of honesty rather than the substance of the direct testimony.
…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…
…has been quartered in any house.[^maj-38] There has been no search, and no seizure.[^maj-39] Nobody has been compelled to be a witness against himself.[^maj-40] The Court also quotes the Ninth Amendment, and my Brother GOLDBERG'S concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this…
…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…
…be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself
…use and derivative-use immunity, to compel testimony. Held: The immunity provided by 18 U.S.C. § 6002 is coextensive with the privilege against self-incrimination
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No. The Fifth Amendment privilege against self-incrimination is personal to natural individuals. It does not extend to artificial entities such as corporations or partnerships, nor to their custodians when acting in a representative capacity.
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Law enforcement must provide specific warnings about the right to remain silent, the fact that anything said can be used in court, the right to an attorney, and the right to appointed counsel if indigent. A valid waiver must also be obtained. Statements taken without these warnings are inadmissible.
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Yes. Use immunity that prohibits the government from using the compelled testimony or its fruits in any criminal case against the witness is sufficient. Transactional immunity is not required.
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