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Self-Incrimination Clause

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 the witness.

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 underhandedness.

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 depositions.

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 enforcement.

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 police lineup.

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 court.

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."

You can read about several interesting and significant Fifth Amendment Court Cases dealing with the Self-Incrimination Clause here.

Thanks for reading about the Self-Incrimination Clause with
Revolutionary War and Beyond!

Other 5th Amendment clauses:

Grand Jury Clause
Grand Jury Exception Clause
Double Jeopardy Clause
Due Process Clause
Eminent Domain Clause


Preamble to the Bill of Rights
Learn about the 1st Amendment here.
Learn about the 2nd Amendment here.
Learn about the 3rd Amendment here.
Learn about the 4th Amendment here.
Learn about the 5th Amendment here.
Learn about the 6th Amendment here.
Learn about the 7th Amendment here.
Learn about the 8th Amendment here.
Learn about the 9th Amendment here.
Learn about the 10th Amendment here.

Read the Bill of Rights here.

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