Compelled Self-Incrimination

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What is “Compelled Self-Incrimination”?

“Compelled self-incrimination” occurs when a suspect or defendant is forced to make statements which would tend to make them guilty of a crime.  Every criminal defendant has a 5th Amendment right to be free from self-incrimination.  This applies only to testimonial evidence (i.e., statements), and not the production of physical evidence.   

The phrase self-incrimination usually applies to incriminating statements which are forced during trial.  However, self-incrimination may be compelled during other stages, including arrest, detention, booking, and other pre-trial phases.  Some examples of compelled self-incrimination include instances where the police or other officials:

In general, the 5th Amendment to the Constitution provides the right to refuse to make any statements or answer questions which would help establish the guilty of the person making the statement.  Refusing to incriminate one’s self is also known as “pleading the Fifth”. 

How does the Right against Self-Incrimination apply during a Criminal Trial?

During any criminal trial, the 5th Amendment allows a criminal defendant the right not to make any incriminating statements.  The privilege against self-incrimination even allows the defendant to choose not to testify if they do not desire to do so. 

This means that the judge, prosecutor, or even the defendant’s own lawyer may not force the defendant to take the witness stand during oral examinations, if they don’t want to do so.

Once a defendant exercises their right not to testify, the jury is not permitted to consider that decision when determining the guilt or innocence of the defendant.  For example, if a defendant refuses to take a stand in an assault case, the jury may not use that refusal as a basis of determining the defendant’s guilt.

However, if a defendant does choose to take the stand and testify, they usually cannot choose to answer only some questions but not others.  Through their act of taking the stand, defendant is said to have “waived” or given up their 5th Amendment right not to testify.  They will then be required to answer any questions that the prosecution or judge may have for them.

What about Physical Evidence?  Does the Privilege against Self-Incrimination apply?

The right against compelled self-incrimination only applies to oral testimony given by the defendant.  It does not apply to physical items of evidence such as weapons or drug paraphernalia.  In other words, a defendant cannot refuse to provide physical objects of evidence, even if they feel that the evidence may be incriminating.

In addition, the privilege against self-incrimination does not apply to pre-trial procedures where the defendant is asked to supply fingerprints or samples of DNA or blood.  If the defendant has been asked to supply such data, they cannot refuse even if such evidence may tend to prove their guilt.

Who can invoke the Privilege against Compelled Self-Incrimination?

During trial, both the defendant as well as any witness can invoke the privilege against self-incrimination.  However, witnesses are more limited in the rights than defendants are in a criminal case.

For example, a witness who is asked to testify can still assert their 5th Amendment rights and refuse to answer specific questions, if the answer would connect them to any criminal activity.  However, unlike the defendant, the witness may still be compelled to testify on the stand, usually through a subpoena.  They can still refuse to answer questions, but only a defendant has the right not to take the stand and testify. 

Do I Need a Lawyer for Legal Problems with Self-Incrimination?

If you feel that your 5th Amendment rights against compelled self-incrimination have been violated, you may wish to speak with a criminal defense attorney.  Violations can occur during trial, or during other procedures such as a police interrogation or arrest.  It is always wise not to state anything that you feel might be held against you.  Confessions that have been wrongfully obtained may be excluded from evidence in a trial. 

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Last Modified: 06-16-2011 01:31 PM PDT

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