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 AmendmentFifth Amendment to the U.S. Constitution, which provided that “No person…shall be compelled in any criminal case to be a witness against himself.” Because of its prominence in movies and television, it remains the defendants’ right most identified in the popular mind.

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 confessionCoerced confessions later read into evidence by the prosecutor at trial. The National Commission on Law Observance and Enforcement, commonly known as the Wickersham Commission, in 1931 documented widespread use of physical brutality by police departments to extract such confessions, especially from members of groups outside the mainstream of society.

In Brown v. Mississippi[case]Brown v. Mississippi[Brown v. Mississippi] (1936), the Supreme Court overturned the capital murder convictions of three African American defendants resting solely on confessions that had been extracted after brutal whippings at the hands of police. Aside from the inherent unreliability of such confessions, the Court sought to discourage such behavior on the part of the police. In Chambers v. Florida[case]Chambers v. Florida[Chambers v. Florida] (1940), the Court formulated the voluntariness rule, requiring trial judges to assess the full circumstances surrounding pretrial confessions not only allegations of physical brutality to ensure that the suspects had voluntarily confessed to the charges against them. Such voluntariness was undermined by any circumstances tending to overbear on the suspect’s free will, including various psychological “third degree” tactics. These cases rested on the due process clause of the Fourteenth Amendment but were subsumed under the right against self-incrimination in Malloy v. Hogan[case]Malloy v. Hogan[Malloy v. Hogan] (1964).

The most notorious of this line of decisions was Miranda v. Arizona[case]Miranda v. Arizona[Miranda v. Arizona] (1966). Experience with the voluntariness rule had revealed reluctance on the part of trial judges to bar confessions extracted by questionable techniques. Widespread complaints, especially by minorities, about police tactics in stationhouse backrooms and a growing egalitarian ethos on the Court led to replacement of the voluntariness rule. The Court ruled that prosecutors were barred from using any incriminating statements made by a suspect before trial unless procedures were already in place to ensure that confessions were based solely on the free will of the defendant. The Court did not specify what these procedures might be, but until the states developed effective alternatives, police would be required to read suspects the Miranda rights before any custodial interrogation. Failure to warn suspects of their right to remain silent and to inform them that statements they made might be used as evidence against them and that they had a right to counsel would result in the exclusion of any incriminating statements from trial. Although more than thirty years of empirical research has found Miranda’s impact on confessions to be negligible, the decision quickly became a lightning rod for attacks on the Court. Critics, such as presidential candidate Richard M. Nixon, accused the Court of favoring defendants at the expense of legitimate law enforcement techniques.

Since the 1970’s the Court has tended to restrict the application of Miranda. In Harris v. New York[case]Harris v. New York[Harris v. New York] (1971), the Court held that statements made in the absence of Miranda warnings, while barred from direct evidence, could be used for cross-examination if the accused took the witness stand. In New York v. Quarles[case]New York v. Quarles[New York v. Quarles] (1984), the Court permitted the use of statements obtained by police if motivated by reasonable concerns for public safety. Other decisions have turned primarily on questions of when the suspect was under custody or what constituted an interrogation.

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[case]Twining v. New Jersey[Twining v. New Jersey] (1908), in which it held the right against self-incrimination not fundamental to a fair trail, as required by the Fourteenth Amendment, or Palko v. Connecticut[case]Palko v. Connecticut[Palko v. Connecticut] (1937), in which the right against self-incrimination was pronounced not essential to justice. Whatever might be the practice of other nations, the immunity against self-incrimination is a fundamental component of U.S. law.

• 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

Exclusionary rule

Fifth Amendment

Griffin v. California

Harris v. New York

Kastigar v. United States

Malloy v. Hogan

Miranda v. Arizona

Plea bargaining

Twining v. New Jersey