Self-Incrimination

• Author: Jeffrey Lehman, Shirelle Phelps

Page 93

Giving testimony in a trial or other legal proceeding that could subject one to criminal prosecution.

The right against self-incrimination forbids the government from compelling any person to give testimonial evidence that would likely incriminate him during a subsequent criminal case. This right enables a defendant to refuse to testify at a criminal trial and "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" (Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 [1973]).

Confessions, admissions, and other statements taken from a defendant in violation of this right are inadmissible against him during a criminal prosecution. Convictions based on statements taken in violation of the right against self-incrimination normally are overturned on appeal, unless there is enough admissible evidence to support the verdict. The right of self-incrimination may only be asserted by persons and does not protect artificial entities such as corporations (Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341, 101 L. Ed. 2d 184 [1988]).

This testimonial privilege derives from the FIFTH AMENDMENT to the U.S. Constitution. Most state constitutions recognize a similar testimonial privilege. However, the term self-incrimination is not actually used in the Fifth Amendment. It provides that "[n]o person ? shall be compelled in any criminal case to be a witness against himself."

Although the language of the Fifth Amendment suggests that the right against self-incrimination applies only during criminal cases, the Supreme Court has ruled that it may be asserted during civil, administrative, and legislative proceedings as well. The right applies during nearly every phase of legal proceedings, including GRAND JURY hearings, preliminary investigations, pretrial motions, discovery, and the trials themselves. However, the right may not be asserted after conviction when the verdict is final because the constitutional protection against DOUBLE JEOPARDY protects defendants from a second prosecution for the same offense. Nor may the privilege be asserted when an individual has been granted IMMUNITY from prosecution to testify about certain conduct that would otherwise be subject to criminal punishment.

At the same time, the right against self-incrimination is also narrower than the Fifth Amendment suggests. The Fifth Amendment allows the government to force a person to be a witness against herself or himself when the subject matter of the testimony is not likely to incriminate the person...