Self-Incrimination in the United States

Testimony offered by a person that may lead to his or her conviction. The privilege against self-incrimination is designed to keep the burden of proof on the prosecution. The Bill of Rights speaks to the matter of self-incrimination in the Fifth Amendment, which says that no person “shall be compelled in any criminal case to be a witness against himself.” This provision was initially applied only to persons on trial. The concept has been extended, however, to include statements made prior to trial that may have the effect of implicating a person in a crime. The privilege also applies to testimony from witnesses appearing before legislative committees or executive agencies. No unfavorable inference may be drawn from a person’s exercise of the privilege. If, for example, a defendant chooses not to testify on his or her own behalf at trial, neither the judge or prosecutor may suggest that anything pertaining to guilt be read into that decision. Indeed, a defendant is entitled to request a specific jury instruction admonishing the jury to draw no inference from refusal to speak with police after arrest or to testify at trial.

See Also

Confession (Criminal Process) Immunity (Criminal Process).

Analysis and Relevance

The privilege against self-incrimination was fully recognized in Great Britain by the early eighteenth century and was established in common law by the time the U.S. Constitution was written. As the Supreme Court said in Murphy v. Waterfront Commission of New York (378 U.S. 52: 1964), the self-incrimination clause reflects “many of our fundamental values and most noble aspirations.” Those values and aspirations include “our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt.” The privilege against self-incrimination represents a society’s preference for an accusatorial rather than an inquisitorial system of criminal justice. It extends only to criminal prosecutions, however, and does not prevent compelled testimony that may damage a witness’s reputation or create adverse economic or social consequences. The Supreme Court resisted early attempts to make the self-incrimination privilege applicable to the states through the Fourteenth Amendment. In Twining v. New Jersey (211 U.S. 78: 1908), the Court concluded that the privilege did not rank “among the fundamental and inalienable rights of mankind,” but rather it constituted a “wise and beneficent rule of evidence.” The Court said it may be a “just and useful principle of law,” but it need not be required at the state level. The Warren Court reversed Twining in Malloy v. Hogan (378 U.S. 1: 1964). It declared “the Twining view of the privilege has been eroded,” and that it was incongruous to have different standards dependent upon whether the right was asserted in a state or a federal court. The contemporary

Analysis and Relevance

of the self-incrimination protection was underlined not only by the Warren Court’s decision to apply the privilege to the states but by the Court’s decision to extend the privilege to pretrial situations such as custodial interrogations. It did so in Miranda v. Arizona (384 U.S. 436: 1966). Miranda required that all detained people be advised of their constitutional rights prior to interrogation. Voluntary confessions are not prohibited by Miranda. Statements taken without following Miranda guidelines may be used, nonetheless, to impeach a defendant’s trial testimony. The privilege against self-incrimination has been confined to communicative or testimonial evidence. Accordingly, it prohibits comment on a defendant’s refusal to testify, but the prohibition does not extend to such defendant-derived evidence as blood samples or to involuntary identification procedures such as lineups. Self-incrimination may be satisfied by granting immunity to a witness, thereby protecting the witness from having compelled testimony used in a subsequent prosecution against him or her.

Notes and References

  1. Definition of Self-Incrimination from the American Law Dictionary, 1991, California

The Right against Self-Incrimination: Main Elements

The coverage of The Right against Self-Incrimination includes the following element(s):

Prosecution and Trial

Find out an overview of this topic, in relation to The Right against Self-Incrimination, in the legal Ecyclopedia.


See Also

  • Criminal Law
  • Criminal Procedure

Self-Incrimination (Case Administration)

This section introduces, discusses and describes the basics of self-incrimination. Then, cross references and a brief overview about Case Administration is provided. Finally, the subject of Bankruptcy Law in relation with self-incrimination is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Self-Incrimination: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Self-Incrimination. This part provides references, in relation to Self-Incrimination, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Self-Incrimination by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Self-Incrimination and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Self-Incrimination or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Self-Incrimination and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Self-Incrimination. Finding these decisions can be challenging. In many cases, researchers about Self-Incrimination should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Self-Incrimination when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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