Self Incrimination

The Fifth Amendment to the U.S. Constitution grants every American the right to refuse to give testimony that would incriminate himself, or cause himself to appear guilty of a crime. The Fifth Amendment does not actually use the term “self incrimination,” but states “No person … shall be compelled in any criminal case to be a witness against himself.” This right against self incrimination protects individuals from being required to answer questions in any civil or criminal proceeding, whether formal or informal, if they feel the answers may incriminate them in a future proceeding. To explore this concept, consider the following self incrimination definition.

Definition of Self Incrimination


  1. The act of giving testimony in court or other legal proceeding that could subject oneself to criminal prosecution.


1920-1925 English

Fifth Amendment Protection Against Self Incrimination

The Fifth Amendment specifically refers to testimony in a criminal case, the U.S. Supreme Court has ruled that the right against self incrimination may also be claimed during civil matters as well as administrative and legislative proceedings. An individual may assert his Fifth Amendment rights at any point during a legal proceeding, from the Grand Jury investigation through the trial itself. Not only may the defendant in such a legal matter claim this right, but other witnesses as well.

In certain circumstances, it may be deemed that testifying would not expose the individual to subsequent prosecution, in which case testimony may be compelled. Such circumstances may include testimony by the defendant after a verdict of guilty has been found, or testimony by an individual who has been granted immunity from prosecution in exchange for his testimony on the subject. In any case, the right against self incrimination applies only to individuals, and may not be asserted by an entity, such as a corporation.

Protection against self incrimination applies only to testimony that would actually criminally implicate the witness. This means that, in a civil lawsuit, an individual may not claim this right to avoid testifying to facts that look bad for his civil case, nor to avoid shame, discredit, or disgrace. For example:

Sheila meets a guy named Rob while having a girls’ night out with her friends at the club. She invites Rob to come home with her. Because he is drunk, Rob runs into her entertainment center, breaking the screen of her TV. Sheila is now suing for the damage. During the trial, Sheila could claim her Fifth Amendment right in refusing to testify or admit that she drove home drunk, as driving under the influence is a criminal offense. She could not, however, avoid answering questions about her questionable decision to bring home a guy she only just met because she is embarrassed.

Testimony that Violates the Right Against Self Incrimination

In order to help ensure law enforcement and prosecution officials take the right against self incrimination seriously, the courts have held that statements, confessions, and admissions obtained from an individual in violation of this right cannot be used against him in a criminal proceeding. In the event the defendant is found guilty based on any statement obtained in a manner that violates his Fifth Amendment right, the conviction may be overturned by an appeals court.

The Right to Remain Silent

Historically, the right against self incrimination was applied only to trials and other legal proceedings. The Supreme Court, in the 1966 landmark case of Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), ruled that this right applies to interrogations by law enforcement and other officials as well. The Court ruled that all individuals have the right to not answer questions, and that police must explain this right to any suspect before questioning him. Police must also explain that the suspect has the right to consult with an attorney, and to have an attorney with him during any questioning. This requirement has since become popularly known as the “Miranda Rights.”

When a defendant, or accused person, chooses not to testify or answer questions, his refusal may not be brought up in front of the jury. Prosecutors have worked around this prohibition by stating during its closing arguments that the facts have not been contradicted. Before the jurors begin their deliberations, however, the court is required to advise them that the defendant’s silence or choice to not testify is not evidence that he is guilty, and that they may not make any conclusions based on that fact.

The Miranda Warning

In Miranda, the Supreme Court did not spell out exact wording that must be used to inform a suspect of his rights. Instead, it stated:

“The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.”

As a result of this ruling, most law enforcement jurisdictions have created a standard Miranda Warning that must be read or recited to suspects before questioning. In reference to this warning, the word “Mirandize” has found its way into American English as a verb. For example, a lawyer may ask a police officer, “Did you Mirandize my client,” or “Has she been Mirandized?”

Related Legal Terms and Issues

  • Compelled – To be required to submit through the use of force or pressure.
  • Entity – An individual, company, association, trust, or other organization that is legally recognized in the eyes of the law.
  • Criminal Prosecution – Legal proceedings against an individual for criminal behavior.
  • Implicate – To imply an individual bears some or all responsibility for a criminal act.
  • Indigent – A person so poor that he cannot provide the necessities of life for himself.