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Privilege Against Self-Incrimination

The Fifth and the Fourteenth Amendments to the U.S. Constitution provide that no person shall be compelled in any criminal case to be a witness against himself/ herself.  The Fifth Amendment to the U.S. Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure.

The Fifth Amendment, First Principle, known as the Self Incrimination Clause reads as follows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.

The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding.  To plead the fifth means to refuse to answer a question because the response could provide self-incriminating evidence of an illegal conduct punished by fines, penalties, or forfeiture.  The right against self-incrimination applies in federal and state courts.  Additionally, the right applies to criminal and civil proceedings.

The Fifth Amendment privilege against self-incrimination is protected by the Fourteenth Amendment against abridgment by the states.  The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement.

The privilege against self-incrimination forbids the government and the court from compelling a person to give testimonial evidence likely to incriminate him/ her during a subsequent criminal case.  The privilege against self-incrimination enables a defendant to refuse to testify at a criminal trial.  “The right 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[i].”

The legal protection against self-incrimination is directly related to the question of torture for extracting information.  Confessions, admissions, and other statements taken from defendants in violation of this right are inadmissible against them during a criminal prosecution.  In the absence of such protection, when a witness is nevertheless compelled to answer, his/ her answers are inadmissible against him/ her in a later criminal prosecution[ii].

A witness can refuse to answer questions or give documentary evidence only when the answer or document would incriminate the witness.  For criminal defendants, the privilege against self-incrimination includes the right to refuse to testify at trial.

The main purposes of constitutional provisions against self-incrimination are:

  • to prohibit the compelling of self-incriminating testimony from a party or a witness;
  • to guarantee the right to remain silent absent immunity; and
  • to prevent the use of legal compulsion to extract from a person accused of crime a sworn communication of facts which would incriminate him/ her.


However, the privilege does not allow a witness to refuse to answer a question because the response can expose the witness to civil liability, social disgrace, loss of status, or loss of private employment.  A witness cannot claim the privilege on the grounds that an answer or document can incriminate a third party.  Moreover, the right against self-incrimination does not apply when an individual testifies before a self regulatory organization.

The privilege is a bar against compelling communications or testimony.  However, that compulsion which makes a suspect or accused the source of real or physical evidence does not violate it[iii].

A suspect voluntarily, knowingly, and intelligently can waive his/ her rights under the Federal Constitution’s Fifth Amendment privilege against self-incrimination.  When a suspect consents to remain silent and to have an attorney present during custodial questioning, any incriminating responses to questioning can be introduced into evidence in the prosecution’s case in chief in a subsequent criminal proceeding[iv].

[i] Lefkowitz v. Turley, 414 U.S. 70, 78 (U.S. 1973).

[ii] Id.

[iii] United States v. Chibbaro, 361 F.2d 365, 375 (3d Cir. N.J. 1966).

[iv] Pa. v. Muniz, 496 U.S. 582 (U.S. 1990).

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