Compelled Self-Incrimination

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 What Is Compelled Self-Incrimination?

When a defendant is forced to make statements that connect them to a crime or implicate them in criminal activity, compelled self-incrimination has occurred. The Fifth Amendment of the U.S. Constitution gives every citizen a right not to incriminate themselves.

This Fifth Amendment right applies to statements, which are referred to as “testimonial evidence” or “testimony,” and to the production of physical evidence as well, with some exceptions.

The right not to incriminate oneself applies during all stages of a criminal investigation, including:

Examples of compelled self-incrimination may include instances where law enforcement or other officials do any of the following:

  • Use threats to obtain a confession, such as:
    • Threats of force;
    • Threats of violence;
    • Other forms of intimidation;
  • Threaten to harm a family member or loved one of a suspect or a defendant in order to obtain a confession or other evidence;
  • Inflict violence on a person or subject a person to some kind of force to make them confess;
  • Threaten to seize property in order to obtain a confession;
  • Continue to interrogate a perpetrator after they have refused to speak unless their attorney is present.

The Fifth Amendment guarantee against self-incrimination is a large part of why citizens of the U.S. are not subjected to torture by law enforcement to try to wring confessions out of them when they are confused about a crime.

Are There Protections Against Self-Incrimination?

As noted above, the Fifth Amendment to the U.S. Constitution provides protection against compelled self-incrimination. The Fifth Amendment clearly states that no one can be compelled in any criminal case to be a witness against himself or herself. This has been interpreted to mean that a person has a right to refuse to make a statement or answer a question, which may tend to establish that the person is guilty of a crime.

People often refer to a person’s refusal to answer questions or make statements that might incriminate them as “Pleading the Fifth.”’

What if the Prosecution Grants a Witness Immunity From Prosecution in Exchange for Their Testimony?

A prosecutor, state or federal, may compel a person to testify, even if their testimony may incriminate the person if the prosecutor gives them immunity from prosecution. This immunity applies not only to the testimony of the witness but to any item of evidence that the police may identify and seize as a result of the testimony.

However, this immunity from prosecution is not ironclad. The police might be able to prove that they found an item of incriminating evidence completely independent of the testimony of the witness. If so, they can use this evidence in the prosecution of the witness for the crime for which the witness was given immunity.

The prosecution might be able to charge a person for a crime about which they testified under immunity. In that case, the defendant would file a motion to suppress evidence the prosecution might have on the grounds that it was identified or seized in violation of the defendant’s immunity.

This would lead to a Kastigar hearing. At the Kastigar hearing, the prosecution would be able to avoid suppression of the evidence and use it in a trial only if it could prove that its case is based only on evidence other than the testimony the defendant gave or the fruits of the testimony. If the prosecution could not meet its burden of proof, the defendant would be able to suppress the evidence and potentially defeat the entire prosecution.

What Is the Right Against Self-Incrimination During a Criminal Trial?

During criminal trials, the Fifth Amendment permits criminal defendants to refrain from giving any testimony that might incriminate them. For this reason, generally, the prosecution is not allowed to call the defendant as a witness in a trial in which the defendant is the accused.

The privilege against self-incrimination also gives the defendant the right to decline to testify if they do not want to do so. Of course, a defendant can testify if they choose to, and if they do, the prosecution can question the defendant. If the defendant chooses to testify, they must answer any questions that the rules of evidence allow the prosecution to ask. When the defendant takes the stand, they give up their Fifth Amendment right not to testify. This is why, in most criminal cases, the defendant chooses not to testify.

Once a defendant exercises their right not to testify, a jury is not permitted to consider that decision when they are determining guilt or innocence. Because of this, it is essential for a defendant and their attorney to discuss the issue and weigh the pros and cons of the defendant testifying or choosing not to testify.

Does the Right Against Self-Incrimination Apply to Physical Evidence?

A defendant’s right not to be compelled to testify against themselves applies to oral statements, including testimony in court. When it comes to physical evidence, the situation is more complicated. Generally speaking, a person cannot be compelled to provide law enforcement with physical evidence they may have that could establish their guilt. However, there are exceptions.

A person cannot be compelled to provide law enforcement with physical evidence, e.g., DNA samples, before they have been arrested. If the police are simply questioning a person as a witness or even as a suspect, they cannot make the person provide a DNA sample or any other type of physical evidence, e.g., fingerprints.

The notable exception to this is the requirement that a person take a breathalyzer test if the police have stopped them on the road based on a reasonable suspicion that the person is driving while intoxicated or under the influence of drugs or alcohol. Even then, the police must justify the stop and the breathalyzer test with evidence that justifies their having a reasonable suspicion that the person stopped was driving while intoxicated.

However, the police may be investigating a murder and ask a suspect to give them all their guns so they can conduct ballistics tests on them to see if one of them is the murder weapon. If this is the case, the suspect is under no obligation to hand their guns over to the police.

DNA samples and fingerprints are a different matter. Law enforcement cannot compel a person to provide a DNA sample, fingerprints, or other items of evidence that might be potentially incriminating before they have been arrested. Accordingly, on TV true crime shows, we sometimes see the police following criminal suspects in public places on the off chance that they will be able to collect a DNA sample from something the suspect tosses in the trash.

All states have laws that allow law enforcement to collect DNA samples from a person who has been convicted of certain specified crimes. Many states permit law enforcement to take a DNA sample after a person has been arrested or charged with a crime. Law enforcement may collect DNA from people who have been convicted of a qualifying federal crime per the federal “DNA Analysis Backlog Elimination Act.” This allows state and federal law enforcement to create DNA databases.

States have different definitions of the crimes that qualify a person for mandatory DNA collection. Some jurisdictions require perpetrators to provide a DNA sample after they have been convicted of any felony. Other states require perpetrators to give a DNA sample after conviction of certain specified offenses, such as murder, rape, and other violent crimes or burglary and sex offenses.

A few states require defendants who are on parole or probation to give DNA samples as a condition of release.

Generally, an arrestee is required to provide a DNA sample during the booking procedure following the arrest, just as they are routinely fingerprinted. However, a few states authorize DNA collection only after a judge or grand jury makes a probable cause determination and the arrestee is charged with a qualifying crime. In states that require a probable cause hearing, some provide an exception if the person was arrested pursuant to a warrant.

For example, some states require the arrestee to consent voluntarily, and there is no penalty for refusing to provide a DNA sample. However, other states authorize the police to use reasonable force to obtain a sample, although this may require that the police get a court order. In other states, refusing to give a DNA sample is a crime that is punishable by imprisonment and a fine.

Who Can Invoke the Privilege Against Compelled Self-Incrimination?

During a trial, both a defendant as well as any trial witnesses may invoke the privilege against self-incrimination. In criminal cases, however, the rights of a witness are more limited than those of the defendant.

For example, if a witness is asked to testify, they can assert their Fifth Amendment right and refuse to answer certain questions if that answer would connect them to criminal activity. However, unlike a defendant, a witness can be compelled to testify, typically through a subpoena.

The witness may still refuse to answer questions if the answers might incriminate them. Only the defendant, however, has the right not to take the stand at all.

Do I Need a Lawyer?

If the police want to talk to you about your possible involvement in a crime, you want to ask for the help of a criminal defense attorney before you say anything. can connect you to an attorney who can guide you through any issues, questions, or concerns you may have regarding your Fifth Amendment rights.

Your lawyer can review your case and advise you whether it would be helpful for you to invoke your Fifth Amendment rights. There are violations of this Amendment that may occur during law enforcement investigations or arrests as well as during trials. Your lawyer will help ensure that your Fifth Amendment rights are protected.


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