The Fifth Amendment of the Constitution reads "no person shall be compelled to be a witness against himself in any criminal case." This language has been interpreted to mean:

  • The privilege against self-incrimination is a personal privilege which only applies to human beings. The privilege does not exist for corporations.
  • The privilege against self-incrimination only applies to criminal cases. Thus, a party cannot "plead the fifth" to stay silent in a civil case, unless the answer will tend to incriminate.
  • "Compelled to be a witness" occurs only when there is a risk of imprisonment for refusing to testify or produce documents.
  • The prosecution and judge may not infer that refusal to testify means an individual is guilty.
  • Certain relationships are granted immunity from testifying against each other. These relationships include but are not limited to: spousal relationships, lawyer-client relationships, and doctor-patient relationships.

What Things Do Not Carry 5th Amendment Self-incrimination Protection?

A few circumstances exist where the Fifth Amendment does not apply. These include:

  • The use of one's body to incriminate one's self. That is, a person cannot disguise themselves to avoid being identified.
  • The government can invade a person's body to obtain evidence. The government's need for this evidence must outweigh the individual's right to privacy.
  • Examples of incriminating evidence include: footprints, fingerprints, DNA, breath, blood samples, hair, saliva, semen, records, and journal or diary entries.
    - Strip Searches: require that the government has a reasonable suspicion of criminal activity. They must be conducted by a member of the same gender, and in private.
    - Body Cavity Searches: must not endanger health, must not cause severe pain or discomfort, must avoid being extremely humiliating or degrading, and cannot produce lasting trauma. Typically, a search warrant is required and the search must be conducted by a medical professional.

Do I Need a Lawyer?

If you feel that your constitutional rights have been compromised, you should contact a criminal lawyer. Speaking with a government attorney experienced in constitutional law will also help inform you of your rights as well as preserve any possible legal remedies you may have.