Fifth Amendment Immunity

Fifth Amendment Immunity The Fifth Amendment guarantees that “no person … shall be compelled in any criminal case to be a witness against himself.” Sometimes called the Great Right, the privilege against self‐incrimination originated in objections to the inquisitorial practices of sixteenth‐century English church and royal courts, especially the Court of Star Chamber. By the end of the seventeenth century, common law incorporated the principle that no man was bound to accuse himself or to answer any questions about his actions. Many early state constitutions included this guarantee, and nineteenth‐century state courts extended its protection to confessions obtained both within and outside the courtroom.

An early federal circuit case, United States v. *Burr (1807), incorporated many of the common‐law requirements as part of the Fifth Amendment right: an individual must assert the right; the court will judge the validity of the claim; and the answer must incriminate directly or be an essential link in a chain of evidence leading to incrimination. The Supreme Court, in Boyd v. United States (1886) and Counselman v. Hitchcock (1892), expanded the right to all criminal cases as well as to civil cases where testimony might lead to criminal prosecution.

Federal standards have governed this privilege since Malloy v. Hogan (1964), when the Court incorporated the right against self‐incrimination into the *Due Process Clause of the Fourteenth Amendment (See Incorporation Doctrine). Miranda v. Arizona (1966) required law officers to inform suspects of their Fifth Amendment right to silence in clear and unequivocal terms. The privilege, however, is not absolute: it offers no protection against compulsory fingerprinting, physical examination, voice recordings, reenactment of a crime, or sobriety tests, among other things; it does not apply when a defendant voluntarily testifies on his own behalf; and it may be overcome by a grant of transactional or use immunity (See Kastigar v. United States, 1972).

See also Fifth Amendment.

David J. Bodenhamer