The Self-Incrimination Clause of the Fifth Amendment to the United
States Constitution guarantees that no one has to testify against
himself in any criminal proceedings. This is one of the most well known
phrases in the entire Constitution, due to the popular concept of
"Pleading the Fifth" or "Taking the Fifth" that is often used in movie
courtroom scenes, and because of the famous "Miranda Warning," which is
spoken to suspects before an interrogation. The Miranda Warning begins,
"You have the right to remain silent..." The Fifth Amendment's
Self-Incrimination Clause reads like this:
"No person... shall be compelled in any
criminal case to be a witness against himself."
History of the Self-Incrimination Clause
The Self-Incrimination Clause is based on the idea that people cannot
be forced to testify against themselves against their will, an idea
that came to America from the English common law. This idea did not
become established law in England until the 1700s. Prior to this time,
people could be forced to testify against themselves, and this evidence
was admissible in court, even if the evidence was obtained by torturing
These tactics had been used primarily to extinguish any political or
religious belief that differed from the Royal
government's. Forcing "confessions" by torture was common to
many European nations. In England the notorious Star Chamber was the
court in which many religious dissenters were tried and executed for
their beliefs. A religious dissenter means one who "dissented" from the
state sanctioned Church of England.
One popular method of the Star Chamber to induce witnesses to testify
was to require them to take what was known as the "oath ex officio." The
witness was required to promise that he would tell all the truth to any
questions the Court was about to ask him. The only problem was that the
person didn't know what was about to be asked or if there were any
pending charges. This oath was often used to coerce Puritans into
admitting they did not agree with the Church of England and into giving
up their friends to the Court. This was a terrible position to be in
because they believed that if they took the oath, promising to answer
the questions, and then went back on their word, they would be
eternally damned by God for lying and, on the other hand, if
they admitted they did not agree with the Church of England, they would
immediately be hanged. Many Puritans lost their lives because of this
The idea that it is a "natural right" that people should not be forced
to testify against themselves came to be popularly accepted during the
case of John Lilburne in 1638. Lilburne was a Puritan who was arrested
for bringing Puritan literature into England. At the time, all
published literature had to be approved by the government. Since the
Puritan literature disagreed with the government's official church, the
literature was banned.
Lilburne became famous for refusing to take the oath ex officio
unless the Court would first tell him what the charges were. He told
them that he knew they were trying to trap him and that this was
inherently wrong according to the laws of God and the laws of England.
He was tortured and imprisoned for refusing to testify against himself.
Lilburne was in and out of prison and trials for much of the rest of
his life, during which time he continually preached the idea that
everyone had certain "freeborn" rights that he was entitled to, among
which was the right to not be forced to testify against oneself. This
earned him the nickname "Freeborn John."
Freeborn John's crusade was so influential that the idea that it was
wrong for the government to force someone to testify against himself
became widely accepted amongst the English population. His literature
was so influential that some people believe Lilburne's works laid the
groundwork for the United States Constitution. Lilburne's work was even
quoted in the famous Miranda vs. Arizona case, that created the famous
Miranda Warning, "You have the right to remain silent..."
The English Puritans embraced the idea that the government should
not force people to testify against themselves or be tortured. Since
most of the early colonists in America were Puritans, who had left
England because of the religious persecution, they carried this idea
with them to the New World.
In spite of their knowledge of English history and in spite of the
widespread belief that forced confessions were unjust, the use of
torture to obtain "confessions" was used occasionally in the thirteen
colonies, especially for capital crimes. In some places, there was no
right to remain silent and people were asked to provide evidence of
their innocence of the charges.
By the time the Revolutionary War ended, the belief was so widely held
that six states wrote in anti-self-incrimination clauses into their
constitutions. Several states also recommended an
anti-self-incrimination clause be added to the Constitution.
When the United States Constitution was being debated, many people did
not believe that it carried enough protection for individual rights,
including the right not to incriminate oneself. A strong call was made
to add a Bill of Rights to the Constitution, or a list of specifically
protected rights. The First Congress added the Bill of Rights to the Constitution,
including the Fifth Amendment Self-Incrimination Clause protecting one's right not to be forced to testify against oneself. The Self-Incrimination Clause and all the other provisions of the Bill of Rights became law on December 15, 1791. You
can read more about the Bill of Rights' purpose here.
Self-Incrimination Clause Purpose
The Self-Incrimination Clause guarantees that people do not have to
answer questions or give up information that might be used against themselves
in legal proceedings. The main purpose of the Self-Incrimination Clause
is to prevent the government from pressuring someone into a confession
through the use of force, torture or trickery. Any confession that is
procured by these means is usually believed to be faulty. Confessions
of this sort are usually given unwillingly and are very unreliable.
Someone might tell the government what it wants to hear in order to
prevent a threatened punishment. For example, if the government said,
"Tell us you committed this crime, or we are going to take your
children away," the person might say he committed the crime, whether he
did or not.
Likewise, if the government was trying to prosecute a law that was
inherently unfair, the person could be punished for testifying that he
was doing something that isn't wrong and be punished for it, in order
to avoid another more severe punishment. For example, if the government
said that reading the bible is against the law and then said, "Tell us
that you read the Bible or else we are going to put you in prison," the
person might testify against himself that he reads the Bible, in order
to avoid going to prison.
Self-Incrimination Clause in everyday life
The Fifth Amendment Self-Incrimination Clause applies in any legal
proceeding, whether criminal, civil or otherwise. It applies in both
state and federal courts.
The right to use the Self-Incrimination Clause was traditionally
recognized only in an actual trial after witnesses have taken an oath
and are on the witness stand, but in the last century, that right has
been extended to pre-trial investigations, interrogations and
The original Bill of Rights was applied only to the Federal government
and not to the states. This means that the states did not have to
comply with the Self-Incrimination Clause. After the 14th Amendment was
added to the Constitution after the Civil War, most of the provisions
of the Bill of Rights were gradually applied to the states as well
through the 14th Amendment's Due Process Clause. Today the
Self-Incrimination Clause is applied to the states.
Physical torture is not the only type of coercion forbidden by the
Fifth Amendment's Self-Incrimination Clause. Interrogation techniques
such as holding people for long periods of time until they confess and
subjecting people to long periods under bright lights have been found
to be unconstitutional pressures designed to force someone to confess
against his will. The final judgment on whether or not a confession is
legal or illegal is usually based on the question of whether or
not the person's testimony was completely voluntary or pressured by law
If someone takes advantage of his right to "plead the fifth," he cannot
be accused by the prosecutor of being guilty of the alleged crime
simply because he relied on his Self-Incrimination Clause right.
Likewise, if a person does not take advantage of the Self-Incrimination
Clause, and instead takes the stand on his own behalf, he cannot later
refuse to answer questions on cross examination. He must "plead
the fifth" first or take the stand, he cannot do both.
No one is allowed to refuse to file required government documents, such
as tax returns, using the reasoning that filing the information would
incriminate him in some way and violate his Self-Incrimination Clause
rights, but he could refuse to put some particular information in the
return that might incriminate him in some way.
Forced confessions are always thrown out of court and they cannot be
used against anyone. Also, if any evidence if found as a result of a
forced confession, the evidence cannot be used in court against the
person either. You may have realized that someone could actually be
guilty and confess their guilt under strong coercion of the government and
this evidence would then have to be thrown out. A guilty person might
go free in this circumstance. Why would the Founding Fathers have put a
provision in the Bill of Rights that might let criminals go free? The
answer is that they were trying to protect the innocent, as well as
convict the guilty. The value of protecting innocent people is so high
that laws are sometimes passed that might let a few criminals squeak by.
The inclusion of the Self-Incrimination Clause might allow a few
criminals to get by without being punished, but how would you like to
be pulled into court, be accused of something you didn't do that had a
very serious punishment and then told you would be punished even more
severely if you didn't admit that you really did it? That's why the
Founding Fathers put the Self-Incrimination Clause in there!
Any testimony that is unjustly gathered by a state government cannot
later be used against the person in a federal trial. Likewise,
illegally compelled testimony in a federal court cannot be used against
someone later in a state court.
Any information gathered in an interrogation cannot be used in court if
the witness was not informed of his rights before the interrogation.
This is known as the "Miranda Warning," which begins, "You have the
right to remain silent..." The Miranda Warning was created to inform criminal defendants of basic rights when they are arrested.
The Fifth Amendment Self-Incrimination Clause only gives people the
right to refuse testimonial evidence to the government. It does not
give them the right to refuse other physical evidence such as
fingerprints, blood samples, tissue samples or to refuse to stand in a
The Self-Incrimination Clause also gives a suspect the right to refuse
to testify about indirect items that might aid the prosecution by
providing a link in a chain of events that could lead it to discovering
the suspect's guilt.
The Self-Incrimination Clause can only be relied upon by individuals.
It cannot be used by an organization, such as a corporation, to refuse
testimony in court. It also cannot be used to avoid testifying about
someone else's guilt. It can only be relied on if the testimony would
incriminate the person giving the testimony.
Self-Incrimination Clause - Grants of Immunity
Sometimes individuals may testify against themselves in court after
receiving a grant of immunity. A grant of immunity means that the
government makes a legally binding promise not to punish the person,
even though he admits guilt, in exchange for his testimony. This
procedure has often been used in Mafia cases, where one suspect will
confess certain crimes and tell about the involvement of others, in
exchange for immunity. The government then uses his testimony against
the other person.
There are two types of immunity - transactional immunity and use
immunity. Transactional immunity guarantees that the
government will not prosecute the person at all for anything to do with
his related testimony.
Use immunity means that the government will not use the subject's
testimony against him in court, but it could use other evidence against
him. In addition, any evidence that is found as a result of testimony
given under a grant of immunity cannot be used against the person in
Self-Incrimination Clause - The Red Scare
During the 1950's, Americans were particularly nervous about the rise
and power of the Soviet Union. There was an active Communist Party in
the United States at this time. Both of houses of Congress appointed
committees to investigate those who were suspected of being involved
with the Communist Party.
Many people, including some celebrities, were brought before the
investigating committees and asked whether or not they had ever been a
part of the Communist Party. They were also asked to give the names of
others they knew who were involved in it. Many people lost their jobs
or were in other ways punished for "pleading the fifth." Most people
assumed they were guilty because they took this course of action. They
were called "Fifth Amendment Communists."
can read about several interesting and significant Fifth Amendment
Court Cases dealing with the Self-Incrimination Clause here.
Other 5th Amendment clauses:
Jury Exception Clause
to the Bill of Rights
about the 1st Amendment here.
about the 2nd Amendment here.
about the 3rd Amendment here.
about the 4th Amendment here.
about the 5th Amendment here.
about the 6th Amendment here.
about the 7th Amendment here.
about the 8th Amendment here.
about the 9th Amendment here.
about the 10th Amendment here.
the Bill of Rights here.
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