Self‐incrimination

Self‐incrimination The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” The right applies to investigatory processes, pretrial disclosures, and trials themselves, as well as to testimony in civil, administrative, and legislative proceedings. Built on the common‐law right to silence, the self‐incrimination protection has to be asserted to be realized.

Contemporary Supreme Court interpretation of this Fifth Amendment provision dates from Twining v. New Jersey (1908), where the Court argued that protection from compulsory self‐incrimination is not a fundamental right but an important rule of evidence. Current interpretation builds on the Court's rejection of Twining in Malloy v. Hogan (1964), which applied the protection against compulsory self‐incrimination to the states (see Incorporation Doctrine). The Warren Court reinforced this incorporation of the Fifth Amendment when it ruled in Miranda v. Arizona (1966) that protection from compulsory self‐incrimination required police to remind criminal suspects of this procedural guarantee.

Generally, the Supreme Court has expanded the protection provided by the constitutional guarantee of a right to remain silent. This is especially obvious in the Court's application of the privilege against self‐incrimination to pretrial and noncriminal proceedings and the affirmative obligations included in the famous Miranda decision. These affirmative obligations are important because they cover almost all police interrogations of criminal suspects and because they specify procedures to protect the privilege against self‐incrimination.

These twentieth‐century developments are rooted in part in British legal history. For example, prior to the sixteenth century, forced oaths and confessions were excluded from trials, while by the late eighteenth century, confessions forced before trial were also excluded. As these rules of evidence took hold in American law, the Supreme Court relied on the voluntariness test to judge whether undue pressure to waive Fifth Amendment protections had been brought to bear on criminal defendants. The Supreme Court's Miranda decision added a new dimension to these efforts to ensure that defendants were not compelled to waive the privilege against self‐incrimination.

The Court's decision in Miranda called considerable attention to the privilege against self‐incrimination, attention that earlier was engendered when Senator Joseph McCarthy conducted congressional hearings on Communists in the United States. Several witnesses at the McCarthy hearings refused to testify on grounds that they were likely to incriminate themselves. These assertions were frequently interpreted as admissions of guilt and the witnesses labeled “Fifth Amendment Communists” (see Communism and Cold War).

When the state wants or needs the testimony of individuals who assert their privilege against self‐incrimination, particular inducements can be exercised. These include two grants of immunity, transactional and use. The former guarantees that the witness will not be prosecuted for anything that transacts from his or her testimony, while the latter protects the witness against prosecutorial use of any evidence drawn from his or her testimony (see Fifth Amendment Immunity).

Regardless of the controversies that have surrounded the privilege against self‐incrimination, it remains an important right in criminal due process. The right builds on common‐law rules of evidence, reflects our reluctance to compel anyone to incriminate himself, and remains an integral part of our adversarial system of justice.

See also Due Process, Procedural.

Susette M. Talarico