§43.01 INTRODUCTION

• Jurisdiction: United States

§43.01. INTRODUCTION

The Fifth Amendment to the United States Constitution prohibits compulsory self-incrimination: "No person . . . shall be compelled in any criminal case to be a witness against himself." In Malloy v. Hogan,¹ the Supreme Court held the privilege applicable in state trials. Many state constitutions also guarantee the right against self-incrimination.

It is the exposure to possible criminal liability, rather than the forum in which the privilege is asserted, that is determinative. In Lefkowitz v. Turley,² for example, the Supreme Court held that the Fifth Amendment privilege applies in any proceeding "civil or criminal, formal or informal, where the answers might incriminate [a person] in future criminal proceedings."³ Accordingly, in addition to trials, the privilege may be asserted during civil depositions, congressional hearings, or administrative proceedings.

Although the privilege applies in other contexts, this chapter examines the Fifth Amendment as it applies to trials.⁴ There are several components to the Self-incrimination Clause: (1) compulsion to provide (2) testimonial evidence (3) that would subject the person to criminal liability.⁵

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Notes:

^[1] 378 U.S. 1 (1964).

^[2] 414 U.S. 70 (1973).

^[3] Id. at 77. See also Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (the privilege "not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also '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.' ") (quoting Lefkowitz, 414 U.S. at 77)); McCarthy v. Arndstein, 266 U.S. 34, 40 (1924).

^[4] See generally Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994); Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086 (1994).

^[5] See Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177, 189...