Self-incrimination
CLEP American Government, Chapter 22
Self-incrimination
The Fifth Amendment protects a person from being forced by government to provide an incriminating testimonial communication. Each word matters. A response is testimonial when it reveals knowledge or thought, incriminating when it creates a real danger of criminal liability, and compelled when government forces the response. A prosecutor therefore cannot require a defendant to take the stand and describe the alleged crime, and generally may not ask the jury to treat the defendant's silence as proof of guilt. The privilege does not cover every demand for evidence. Fingerprints, a photograph, a voice sample, or a properly obtained blood sample ordinarily reveal physical characteristics rather than the contents of the person's mind. Requiring a person to disclose a memorized safe combination presents a different issue because the answer communicates knowledge.
The privilege can arise before trial and outside a criminal courtroom. A witness in a civil hearing may invoke it question by question if an answer could expose the witness to prosecution. Government may sometimes compel testimony after granting immunity broad enough to prevent the protected use of that testimony. The privilege belongs to natural persons; a corporation cannot refuse to produce corporate records merely by invoking a personal Fifth Amendment right. Place the issue correctly in the criminal-process analysis: the privilege is the underlying protection against compelled testimonial self-incrimination, while Miranda supplies safeguards for custodial interrogation. Do not assume that Miranda created the privilege or applies whenever police speak to someone. A person can have a self-incrimination claim outside custody, and an uncoerced request for physical evidence does not become testimonial merely because the evidence is incriminating.
Video lesson: Due Process of Law: Crash Course Government and Politics #28
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