Chapter 4 - §3. Privilege against self-incrimination

JurisdictionUnited States

§3. Privilege against self-incrimination

§3.1. Overview. Under Evid. C. §940, a person has a privilege from being compelled by the government to give testimonial evidence that would incriminate him in a criminal case. See People v. Gastello (2010) 49 Cal.4th 395, 403. This is generally known as the privilege against self-incrimination.

§1. Source of privilege. Like the privilege not to be called as a witness or testify under Evid. C. §930, the privilege against self-incrimination under Evid. C. §940 derives from the Fifth Amendment to the U.S. Constitution and California Constitution article 1, §15. See People v. Carter (2005) 36 Cal.4th 1114, 1198; People v. Lopez (4th Dist.2006) 137 Cal.App.4th 1099, 1106, disapproved on other grounds, Hudec v. Superior Ct. (2015) 60 Cal.4th 815. The statutory privilege exists only to the extent that such a privilege exists under either the state or the federal constitution. Evid. C. §940. Thus, the scope of the privilege's protection, its exceptions, and the circumstances that permit its waiver are not governed by the statute but by the courts' interpretations of those constitutional provisions. Maldonado v. Superior Ct. (2012) 53 Cal.4th 1112, 1135; 7 Cal. Law Rev. Comm'n Rep. (1965), p. 1163. But after the passage of Proposition 8 (Victims' Bill of Rights) in 1982, the protections afforded by the state constitutional provision should not be interpreted to permit an exclusion of evidence that would not be permissible under the federal constitution. See People v. May (1988) 44 Cal.3d 309, 318-19. For a discussion of Proposition 8, see "Exceptions to admissibility," ch. 1, §3.2.

2. Distinguished from defendant's testimonial privilege. Although the privilege against self-incrimination and the defendant's testimonial privilege under Evid. C. §930 both derive from the same constitutional origins, the two are very distinct. For a discussion of the distinctions, see "Distinguished from privilege against self-incrimination," ch. 4-C, §2.1.2.

3. Distinguished from involuntariness & Miranda. The privilege against self-incrimination generally protects a person from being compelled by the government to make incriminating statements. People v. Case (2018) 5 Cal.5th 1, 24; see Conservatorship of J.Y. (1st Dist.2020) 49 Cal.App.5th 220, 227 (pet. granted 8-19-20; No. S263044). The privilege, however, is not considered self-executing—that is, to take advantage of the privilege, the person must invoke it before the incriminating statement is made. Minnesota v. Murphy (1984) 465 U.S. 420, 427. Thus, the failure of police to administer Miranda warnings does not, in and of itself, make any subsequent statements coerced, but it will lead courts to presume that "the privilege against compulsory self-incrimination has not been intelligently exercised." Case, 5 Cal.5th at 24. Once an incriminating statement is made, there is usually no way to prevent the statement from being admitted based on a violation of the privilege against self-incrimination. The privilege does not have to be invoked, however, if governmental coercion makes a person's failure to invoke the privilege involuntary. Salinas v. Texas (2013) 570 U.S. 178, 184-85 (plurality op.). This can occur, for instance, when a person (1) discloses information during a custodial interrogation before warnings as required under Miranda v. Arizona (1966) 384 U.S. 436, are given or (2) is induced to forgo the privilege by threats of punishment. Salinas, 570 U.S. at 184-85. In such cases, not only are the person's incriminating statements inadmissible, but so are his nonincriminating statements. See Mincey v. Arizona (1978) 437 U.S. 385, 398; Miranda, 384 U.S. at 444. For a discussion of the admissibility of these statements under the privilege against self-incrimination, see "Fifth Amendment—Voluntariness of Statements," ch. 5-B, §1 et seq.; "Fifth Amendment—Miranda," ch. 5-C, §1 et seq.

§3.2. Elements of privilege against self-incrimination. For the privilege against self-incrimination to apply, the information sought must be (1) testimonial or communicative in nature, (2) incriminating, (3) personal to the claimant, and (4) obtained by compulsion. Verdin v. Superior Ct. (2008) 43 Cal.4th 1096, 1110; Izazaga v. Superior Ct. (1991) 54 Cal.3d 356, 366.

1. Testimonial evidence. The privilege against self-incrimination is restricted to compelled incriminatory communications that are testimonial in nature. In re Twelve Grand Jury Subpoenas (9th Cir.2018) 908 F.3d 525, 527; Verdin, 43 Cal.4th at 1110; see U.S. v. Hubbell (2000) 530 U.S. 27, 34.

(1) Defined. Evidence is considered testimonial if it communicates a factual assertion or reveals facts, knowledge, belief, or other information from a person's mind. See Doe v. U.S (Doe II) (1988) 487 U.S. 201, 209-10; Verdin, 43 Cal.4th at 1110-11; Siry Inv. v. Farkhondehpour (2d Dist.2020) 45 Cal.App.5th 1098, 1124 (pet. granted 7-8-20; No. S262081). The privilege protects these communications in whatever form they might take (e.g., oral, written). Schmerber v. California (1966) 384 U.S. 757, 763-64. But testimonial evidence does not include real or physical evidence that comes from the person himself, such as the person's physical appearance. See id. Such evidence is not considered testimonial because it is not a communication that reveals a person's knowledge or thought processes. See Doe II, 487 U.S. at 210-11.

(2) Examples of testimonial evidence.

(a) Oral & written statements. Oral or written statements are typically considered testimonial because "[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts." Doe II, 487 U.S. at 213.

(b) Acts.

[1] Generally. Acts that expressly or impliedly assert facts are testimonial. See Doe II, 487 U.S. at 209; Schmerber, 384 U.S. at 761 n.5. This includes acts such as nodding or shaking one's head. Schmerber, 384 U.S. at 761 n.5.

[2] Producing documents. The act of producing documents can under certain circumstances be considered testimonial. U.S. v. Doe (1984) 465 U.S. 605, 612. The physical act of producing documents can be testimonial when it constitutes an admission that the papers existed, were in the person's possession or control, and are authentic. Hubbell, 530 U.S. at 36; Doe, 465 U.S. at 612-13 & n.11. For a discussion of when the production of documents is not privileged, see "Exception to privilege against self-incrimination—Required records," ch. 4-C, §3.3.

[3] Performing Romberg test. The act of communicating the passage of time during a Romberg test during a DUI investigation is testimonial. People v. Bejasa (4th Dist.2012) 205 Cal.App.4th 26, 44. During a Romberg test, a person is asked to stand at attention, close his eyes, tilt his head back, and estimate the passage of 30 seconds. Id. at 33. The court in Bejasa concluded that unlike performing a reflexive or physical process, such as counting out loud, communicating the passage of time during a Romberg test required the individual to make a mental calculation and communicate the calculation to the police, and thus was testimonial. Id. at 44; see also People v. Cooper (2d Dist.2019) 37 Cal.App.5th 642, 652-53 (any error by trial court in not suppressing D's estimate of 23 seconds on Romberg test was harmless because of her performance on other field sobriety tests and other objective symptoms of impairment).

(3) Examples of nontestimonial evidence.

(a) Submitting to or performing tasks that elicit physical evidence. A person's submission to tests or performance of tasks that extract or elicit real or physical evidence from his body are considered nontestimonial. See Fisher v. U.S. (1976) 425 U.S. 391, 408 n.10; People v. Collie (1981) 30 Cal.3d 43, 55 n.7. Some examples include the following:

[1] Providing blood sample. Schmerber, 384 U.S. at 761.

[2] Performing field sobriety test. People v. Bennett (1st Dist.1983) 139 Cal.App.3d 767, 771.

[3] Providing hair and saliva samples. People v. Thomas (5th Dist.1986) 180 Cal.App.3d 47, 52.

[4] Providing urine sample. See People v. Saldivar (1st Dist.1967) 249 Cal.App.2d 670, 672-73.

[5] Having stomach pumped to recover physical evidence. See People v. Jones (2d Dist.1971) 20 Cal.App.3d 201, 203, 210.

[6] Providing voice sample. People v. Ellis (1966) 65 Cal.2d 529, 533-34.

[7] Providing handwriting sample. Gilbert v. California (1967) 388 U.S. 263, 266-67.

[8] Providing fingerprints. People v. Bryant (2d Dist.1969) 275 Cal.App.2d 215, 218-19.

[9] Participating in lineup. U.S. v. Wade (1967) 388 U.S. 218, 221.

[10] Exhibiting body part. See People v. Perez (2d Dist.1989) 216 Cal.App.3d 1346, 1350-51 (dicta).

[11] Shaving beard. See People v. Carpenter (1997) 15 Cal.4th 312, 372, overruled on other grounds, People v. Diaz (2015) 60 Cal.4th 1176.

[12] Wearing particular clothing. Holt v. U.S. (1910) 218 U.S. 245, 252-53.

[13] Standing, assuming a stance, walking, or making a particular gesture. Schmerber, 384 U.S. at 764.

[14] Stopping and disclosing one's name and address at the time of an accident as required under Veh. C. §20002(a). People v. Dimacali (4th Dist.2019) 32 Cal.App.5th 822, 830 n.4.

(b) Refusing to submit to or perform tasks. A person's refusal to submit to or perform tasks that extract or elicit real or physical evidence from his body are similarly considered nontestimonial. See, e.g., People v. Johnson (1992) 3 Cal.4th 1183, 1221-22 (D's refusal to participate in lineup was nontestimonial); Ellis, 65 Cal.2d at 536-37 (D's refusal to display his voice was nontestimonial).


A defendant's refusal to submit to or perform such tasks can be admissible to imply consciousness of guilt. See "Refusal to submit to authorized test," ch. 1, §4.8.6.

2. Incriminating evidence. The testimonial or communicative evidence sought from the person must be incriminating. Evid. C. §404; see Hiibel v. Sixth Judicial Dist. Ct. (2004) 542 U.S. 177, 189; Izazaga, 54 Cal.3d at 366; see, e.g.,...

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