Privilege against Self-Incrimination

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The privilege against self-incrimination forbids the government from compelling any person to give testimonial evidence that would likely incriminate him or her during a subsequent criminal case. This right enables a defendant to refuse to testify at a criminal trial and, according to the U.S. Supreme Court, "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973).

Confessions, admissions, and other statements taken from defendants in violation of this right are inadmissible against them during a criminal prosecution. Convictions based on statements taken in violation of the right against self-incrimination normally are overturned on appeal, unless sufficient admissible evidence is available to support the verdict. The right against self-incrimination may only be asserted by persons and does not protect artificial entities such as corporations. Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988).

Witness Privilege

A witness may refuse to answer questions or give documentary evidence only if the answer or document would incriminate the witness. An answer is considered self-incriminating if it would lead to criminal liability in any jurisdiction. The answer need only furnish a link in the chain of circumstantial evidence necessary for a conviction Blau v. United States, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170 (1950). The answer does not have to be one that would be admissible as evidence in a criminal trial.

The privilege does not allow a witness to refuse to answer a question because the response may expose the witness to civil liability, social disgrace, loss of status, or loss of private employment. A witness may not claim the privilege on the grounds that an answer or document may incriminate a third party: it may be declared only by the witness for the witness.

In some criminal cases, a prosecutor may grant to a witness immunity from prosecution. This immunity comes in two forms: transactional and testimonial. Transactional immunity gives the witness immunity from prosecution for the criminal acts to which the witness refers in his or her statements. Testimonial immunity merely prevents the prosecution from using the statements the witness makes in a subsequent prosecution of the witness. Prosecutors have the right to grant only testimonial immunity and thereby force witnesses to testify. If the witness refuses to testify after being given testimonial immunity, he or she could be jailed for contempt of court. Furthermore, if a witness with testimonial immunity testifies falsely, the false statements may be used against the witness in a subsequent prosecution for perjury.

By contrast, if police or prosecutors summon a witness to produce self-incriminating documents, the witness may claim the privilege because a summons to produce documents is similar to a demand for testimony. Curcio v. United States, 354 U.S. 118, 77 S. Ct. 1145, 1 L. Ed. 2d 1225 (1952). However, police and prosecutors may force a witness to relinquish self-incriminating documents if the records pertain to a regulated public matter, such as price records kept by businesses under price regulation statutes.

Criminal Defendant Privilege

In miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court extended the right to remain silent to pretrial custodial interrogations. The Court held that before a suspect is questioned, the police must apprise the suspect of his or her right to remain silent and that if he or she gives up this right, any statements may be used against the suspect in a subsequent criminal prosecution. Under Miranda, suspects also have a fifth amendment right to consult an attorney before they submit to questioning. Miranda applies to any situation in which a person is both held in custody by the police, which means that he or she is not free to leave, and is being interrogated, which means he or she is being asked questions that are designed to elicit an incriminating response. A person need not be arrested or formally charged for Miranda to apply.

Miranda has been scrutinized by law enforcement personnel and others since it was first decided. In 1968, Congress enacted a law, codified at 18 U.S.C.A. § 3501, that restored voluntariness as a test for admitting confessions in a federal court. The u.s. justice department, however, under attorneys general of both major political parties, refused to enforce the provision, believing it to be unconstitutional. The Supreme Court, in Dickerson v. United States, 30 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), ruled that this law could not revoke Miranda because the 1966 decision had been made on constitutional grounds.

For criminal defendants, the privilege against self-incrimination includes the right to refuse to testify at trial. A defendant may testify at a preliminary hearing on the admissibility of evidence without waiving the right to not testify at trial. Incriminating statements made by a defendant in a preliminary hearing are not admissible at trial, and the prosecutor may not comment on them.

The Court has held that the privilege is not compromised by laws that require persons to surrender identification to law enforcement personnel. California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971). A person who is suspected of a crime may be compelled to testify before a grand jury, a legislative body, or an administrative board. The person must appear and answer questions, but he may claim the privilege against self-incrimination when necessary.

further readings

"Criminal Law and Procedure; Privilege Against Compelled Self-Incrimination." 1994. SMH Bar Review.

"Evidence; Self-Incriminating Testimony." 1994. SMH Bar Review.

"Self-Incrimination." 2002. Harvard Law Review 302.


Circumstantial Evidence; Immunity; Testimony; Witnesses.