Right Against Self-Incrimination in the United States

Right Against Self-Incrimination in the United States Constitution

The guarantee against self-incrimination is among the protections set out in the Fifth Amendment. That provision declares that no person can be “compelled in any criminal case to be a witness against himself.” This protection must be honored in both the federal and State courts, Malloy v. Hogan, 1964.

In a criminal case, the burden of proof is always on the prosecution. The defendant does not have to prove his or her innocence. The ban on self-incrimination prevents the prosecution from shifting the burden of proof to the defendant. As the Court put it in Malloy v. Hogan, the prosecution cannot force the accused to “prove the charge against” him “out of his own mouth.”

According to the Encyclopedia of the American Constitution, the Fifth Amendment is virtually synonymous with the right against self-incrimination. One who “pleads the Fifth” is not insisting on grand jury indictment, freedom from double jeopardy, or just compensation for property taken by the government. (…) In the original edition of this Encyclopedia, Leonard W. Levy characterized the right against self-incrimination as “the most misunderstood, unrespected, and controversial of all constitutional rights,” yet stressed some features of the Supreme Court tendency.

Applying the Guarantee

The language of the 5th Amendment suggests that the guarantee against self-incrimination applies only to criminal cases. In fact, the guarantee covers any governmental proceeding in which a person is legally compelled to answer any question that could lead to a criminal charge. Thus, a person may claim the right (“take the Fifth”) in a variety of situations: in a divorce proceeding (which is a civil matter), before a legislative committee, at a school board’s disciplinary hearing, and so on.

The courts, not the individuals who claim it, decide when the right can be properly invoked. If the plea of self-incrimination is pushed too far, a person can be held in contempt of court.

The guarantee against self-incrimination is a personal right. One can claim it only for oneself. With this major exception: A husband cannot be forced to testify against his wife, or a wife against her husband, Trammel v. United States, 1980. One can testify against the other voluntarily, however. This right against self-incrimination cannot be invoked in someone else’s behalf; a person can be forced to “rat” on another. The privilege does not protect a person from being fingerprinted or photographed, submitting a handwriting sample, or appearing in a police lineup. And, recall, it does not mean that a person does not have to submit to a blood test in a drunk driving situation, Schmerber v. California, 1966.

A person cannot, however, be forced to confess to a crime under duress, that is, as a result of torture or other physical or psychological pressure. In Ash craft v. Tennessee, 1944, for example, the Supreme Court threw out the conviction of a man accused of hiring another person to murder his wife. The confession on which his conviction rested had been secured only after some 36 hours of continuous, threatening interrogation. The questioning was conducted by officers who worked in shifts because, they said, they became so tired that they had to rest.

The gulf between what the Constitution says and what goes on in some police stations can be wide indeed. For that reason, the Supreme Court has come down hard in favor of the defendant in many cases involving the protection against self-incrimination and the closely related right to counsel.

Recall, for example, the Court’s decision in Escobedo v. Illinois, 1964. There it held that a confession cannot be used against a defendant if it was obtained by police who refused to allow the defendant to see his attorney and did not tell him that he had a right to refuse to answer their questions.

Miranda v. Arizona: The Miranda Rule

In a truly historic decision, the Court refined the Escobedo holding in Miranda v. Arizona, 1966. A mentally retarded man, Ernesto Miranda, had been convicted of kidnapping and rape. Ten days after the crime, the victim picked Miranda out of a police lineup. After two hours of questioning, during which the police did not tell him of his rights, Miranda confessed. The Supreme Court struck down Miranda’s conviction. More importantly, the Court said that it would no longer uphold convictions in any cases in which suspects had not been told of their constitutional rights before police questioning. It thus laid down the Miranda Rule. Under the rule, before police may question a suspect, that person must be:

• told of his or her right to remain silent;
• warned that anything he or she says can be used in court;
• informed of the right to have an attorney present during questioning;
• told that if he or she is unable to hire an attorney, one will be provided at public expense;
• told that he or she may bring police questioning to an end at any time.

The Miranda Rule has been in force for 40 years now (and made famous by countless television dramas over that period). As the Court put it in Dickerson v. United States, 2000, the rule “has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

The Supreme Court is still refining the rule on a case-by-case basis. Most often the rule is closely followed. But there are exceptions. Thus, the Court has held that an undercover police officer posing as a prisoner does not have to tell a cell mate of his Miranda rights before prompting him to talk about a murder, Illinois v. Perkins, 1990.

The case Missouri v. Seibert, 2004, centered on what lately had become fairly common police practice: two-step interrogations, also known as “rehearsed confessions.” Here, police officers had questioned Patrice Seibert, drawing out details of the fire she had set to cover up the murder of her son. Then, she was told of her Miranda rights–and questioned again. That second round was taped, and she was asked questions based on the incriminating statements she had made in the first-untaped, unwarned- round. She confessed again.

The Supreme Court found that her confession had been coerced and so was invalid. It struck down the two-step practice, saying that it threatened the very purpose of Miranda.

The Miranda rule has always been controversial. Critics say that it “puts criminals back on the streets.” Others applaud the rule, however. They hold that criminal law enforcement is most effective when it relies on independently secured evidence, rather than on confessions gained by questionable tactics from defendants who do not have the help of a lawyer.