One’s right, before any compulsory forum, to resist testifying on any matter that might ensnare one in a criminal investigation or aid in one’s own prosecution.
The right of the accused to refuse to testify against himself or herself gained acceptance in English common law after the seventeenth century, a period of strife that saw frequent reliance on the compulsory oath as an instrument of political and religious persecution. So venerated was this right in North America that it was included in the Fifth Amendment
Although the Constitution locates the right “in any criminal case,” the Supreme Court extended it to any forum in which the individual might be compelled to testify, such as grand juries or legislative investigations. It is, however, limited to subjects on which the individual might be vulnerable to prosecution and therefore does not cover testimony that is merely humiliating or that exposes the witness to civil suit. Additionally, the right is limited to testimony and does not bar the compulsory production of nontestimonial evidence, such as fingerprints, photographs, blood samples, appearance in a lineup, or even providing voice exemplars. It is only the suspect’s words that may not be used in evidence for his or her own undoing. The right can be asserted only on behalf of oneself and does not bar compulsory testimony against a relative or accomplice. Properly asserted, the right is absolute, but it can be circumvented by a grant of immunity from prosecution, on the theory that such immunity offers protection coextensive with the right. The right is frequently exercised when defendants decline to take the witness stand to avoid cross-examination. Understandably, this is a risky right to assert because juries might infer guilt from silence.
Assertion of immunity from self-incrimination at trial would be a hollow exercise if the suspect were compelled to confess to a criminal charge before trial and the confession
In Brown v. Mississippi
The most notorious of this line of decisions was Miranda v. Arizona
Since the 1970’s the Court has tended to restrict the application of Miranda. In Harris v. New York
In court, the immunity against self-incrimination is a “fighting right,” meaning it does not become effective unless specifically asserted by the accused. It can be waived, however, and usually is. Over 90 percent of all felony convictions in the United States result from guilty pleas, usually pursuant to plea bargains. The effect of a guilty plea is the waiver of all trial and pretrial rights, including relief from self-incrimination. Trial judges are obliged to examine the guilty plea on record to verify that it is offered knowingly and intelligently, but this is pro forma. Usually, the guilty plea has been arranged by counsel. Nevertheless, the Court has come a long way from Twining v. New Jersey
Berger, Mark. Taking the Fifth. Lexington, Mass.: D.C. Heath, 1980. Bodenhamer, David J. Fair Trial: Rights of the Accused in American History. New York: Oxford University Press, 1992. Fireside, Harvey. The Fifth Amendment: The Right to Remain Silent. Springfield, N.J.: Enslow, 1998. Garcia, Alfredo. The Fifth Amendment: A Comprehensive Approach. Westport, Conn.: Greenwood Press, 2002. Helmholtz, R. H., Charles M. Gray, John H. Langbein, Eben Moglin, Hesury M. Smith, and Albert W. Altschuler. The Privilege Against Self-Incrimination: Its Origin and Development. Chicago: University of Chicago Press, 1997. Levy, Leonard W. Origins of the Fifth Amendment. New York: Oxford University Press, 1968.
Brown v. Mississippi
Counsel, right to
Counselman v. Hitchcock
Due process, procedural
Griffin v. California
Harris v. New York
Kastigar v. United States
Malloy v. Hogan
Miranda v. Arizona
Twining v. New Jersey