Fifth Amendment – Right Against Self-Incrimination

This provision of the Fifth Amendment protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution.

1789Fifth Amendment Proposed

James Madison proposes his amendments to the Constitution, which will become known as the Bill of Rights. He includes a constitutional provision that an individual shall not “be compelled to be a witness against himself.” Congress adds the words “in any criminal case,” meaning that the provision, which will become known as “taking the Fifth,” will be allowed only in criminal trials, not civil ones. This will become one of the Fifth Amendment’s clauses providing safeguards against abuse of criminal laws.

1791Fifth Amendment Ratified

The Bill of Rights, including the Fifth Amendment, is ratified. The amendment contains several clauses that provide protection against governmental abuse of criminal law. Another clause says that no one “shall be deprived of life, liberty, or property without due process of law.” The amendment protects individuals by limiting government’s power of eminent domain under which it can confiscate private property.

1924Right Against Self-Incrimination Applies In Some Civil Cases

In McCarthy v. Arndstein, the U.S. Supreme Court rules that a debtor testifying at his own bankruptcy hearing is allowed to refuse to answer questions because his answers might incriminate him. The Court holds that the Fifth Amendment privilege against self-incrimination applies to defendants in civil cases, not just criminal defendants, when criminal prosecution might result from the disclosure.

1944Organizations Do Not Have Right Against Self-Incrimination

In United States v. White, the U.S. Supreme Court rules that a labor union under criminal investigation cannot refuse to turn over its records on the grounds of self-incrimination, explaining that the Bill of Rights was enacted to protect individuals, not organizations, from the government.

1951Right Against Self-Incrimination Broadened

In Hoffman v. United States, the U.S. Supreme Court rules that a witness has the Fifth Amendment right to refuse to testify not only when the testimony alone might support a criminal conviction, but also when the witness has a reasonable fear that the testimony might assist the government in building a criminal case against the witness – such as by providing a link in the chain of evidence needed for prosecution.

1955No ‘Magic Words’ Needed To Trigger 5th Amendment Privilege

In Emspak v. United States, the U.S. Supreme Court rules that a witness before the House Un-American Activities Committee who refused to answer certain questions about his affiliation with the Communist Party is protected by the Fifth Amendment’s right against self-incrimination. The Court says the witness should not have been convicted and fined for contempt. The Court holds that for a witness to be allowed not to answer a question on Fifth Amendment grounds, he need not say any particular phrase: “All that is necessary is an objection stated in language that a committee may reasonably be expected to understand as an attempt to invoke the privilege.”

1964State Defendants Also Have Self-Incrimination Privilege

In Malloy v. Hogan, the U.S. Supreme Court rules that the Fifth Amendment’s right against self-incrimination, which historically applies only to witnesses in federal trials, also protects individuals testifying in state court.

1965Prosecutor Cannot Comment On Defendant’s Silence

In Griffin v. California, the U.S. Supreme Court rules that the Fifth Amendment right against self-incrimination not only allows a criminal defendant to refuse to take the witness stand during his trial, but it also bars the prosecutor from urging the jury to interpret that silence as an indication that the defendant has something to hide. The Court reasons that the right against self-incrimination would be meaningless if a defendant’s exercise of the right could be used against him.

1966‘You Have The Right To Remain Silent…’

In Miranda v. Arizona, the U.S. Supreme Court rules that the Fifth Amendment right against self-incrimination is not limited to in-court testimony, but also applies when a person is taken into police custody for questioning. The Court also rules that criminal suspects must be told of their Sixth Amendment right to an attorney. Once a person “indicates in any manner that he does not wish to be interrogated,” the police must stop asking questions – even if the person has answered questions up to that point, the Court says.

These mandatory statements by police have become known as Miranda rights or Miranda warning, and the process of informing a person of these rights has become known as Mirandizing.

1966Self-Incrimination Privilege Applies Only To Testimony

In Schmerber v. California, the U.S. Supreme Court rules that the Fifth Amendment does not prevent a court from admitting evidence of a drunken-driving defendant’s blood test showing an illegal blood alcohol level. The Court explains that because the blood test results are not “testimony nor evidence relating to some communicative act or writing” by the defendant, the use of those results at trial does not violate his right against self-incrimination.

1968Tax Law Found To Compel Self-Incrimination Struck Down

In Marchetti v. United States, the U.S. Supreme Court strikes down a tax law that requires people in the betting industry to post documentation confirming their payment of a certain “occupational tax.” The Court rules that the law compels people who have not paid the tax to give incriminating information against themselves, and therefore violates the Fifth Amendment.

1968Defendants Cannot Be Forced To Choose Between Rights

In Simmons v. United States, the U.S. Supreme Court rules that when a criminal defendant chooses to testify at a pretrial hearing about certain evidence (which the defendant alleges was gathered by police in violation of the Fourth Amendment’s search and seizure provision), that testimony – even if it is incriminating – cannot later be used against the defendant at trial. Otherwise, the court states, a defendant will be forced to choose between exercising his Fourth Amendment right (to try to suppress illegally obtained evidence) or his Fifth Amendment right (to refuse to give testimony against himself).

1990Miranda Not Required When Police Are Undercover

In Illinois v. Perkins, the U.S. Supreme Court rules that the Fifth Amendment’s self-incrimination clause is not violated where a suspect in custody confesses to an undercover police officer posing as a fellow inmate. The Court rules that even though a police officer was doing the questioning, and even though he did not give a Miranda warning to the suspect, no Fifth Amendment violation occurred because the “essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate.”

2001Innocent Can Invoke 5th Amendment Right

In Ohio v. Reiner, the U.S. Supreme Court holds that the Fifth Amendment right against self-incrimination “protects the innocent as well as the guilty.” Charged with killing his son Alex, Matthew Reiner pleaded not guilty. His defense lawyers accused the baby sitter, Susan Batt, of the crime. Batt was granted immunity after she asserted her innocence and informed the court that she planned to invoke her right against self-incrimination. After the jury convicted Reiner, he appealed to the state’s high court, questioning Batt’s Fifth Amendment right. The state court agreed with Reiner, maintaining that a person waives that right upon declaring herself innocent. An innocent witness, the state court says, cannot incriminate herself and is deprived of Fifth Amendment protection. The U.S. Supreme Court reverses the decision, saying that for witnesses to invoke their right against self-incrimination, they have to show only that there is “reasonable cause” to believe testifying could put them in legal jeopardy.

2002Convicted Sex Offender Can Be Penalized For Not Confessing

In McKune v. Lile, the U.S. Supreme Court decides that the state of Kansas can penalize a prisoner who refuses to confess to crimes for which he had been sentenced. Prison officials had ordered the prisoner to participate in the Sexual Abuse Treatment Program, which required the prisoner to admit to the crimes for which he had been sentenced and provide a comprehensive sexual history that could potentially reveal uncharged offenses. If the prisoner failed to participate, prison officials threatened to diminish his privileges and transfer him to a more dangerous maximum-security unit. The prisoner refused, invoking his Fifth Amendment right against self-incrimination. The justices rule the treatment program does not violate the right against self-incrimination.

2006General Is Silent In Prisoner Abuse Cases

Maj. Gen. Geoffrey D. Miller, former commander of the Guantanamo Bay detention center who helped set up interrogation practices at Abu Ghraib prison in Iraq, refuses to testify further about prisoner interrogations, citing his military Article 31 rights, which are similar to the Fifth Amendment right against self-incrimination. Miller’s decision to remain silent will affect court-martial proceedings for two soldiers accused of using dogs to terrorize prisoners at Abu Ghraib. He was implicated in a Guantanamo abuse case, but several investigations cleared him of wrongdoing related to the Abu Ghraib scandal.

2006Convictions Of Foreign Nationals Not Told Of Rights Are Upheld

Moises Sanchez-Llamas, a Mexican national, was arrested after a shootout with police in Oregon. Officers did not inform him that he could ask to have the Mexican Consulate notified. According to the Vienna Conventions, any signing country is obligated to inform other treaty members’ consulates if one of their citizens is arrested in that country. During interrogation, Sanchez-Llamas made incriminating statements. Before his trial for attempted murder and other offenses, Sanchez-Llamas moved to suppress those statements because his Vienna Convention rights were violated. The state court denied that motion, and Sanchez-Llamas was convicted and sentenced to prison. The Oregon Court of Appeals, the Oregen Supreme Court, and the U.S. Supreme Court all affirmed.

Mario Bustillo, a Honduran national, was arrested and charged with murder in Virginia, but police never informed him that he could ask that the Honduran Consulate be notified. He was convicted and sentenced to prison, and his conviction and sentence were affirmed on appeal. He filed a habeas petition in state court arguing, for the first time, that authorities had violated his right to consular notification. The court dismissed the claim because he had failed to raise it at trial or on appeal. The Virginia Supreme Court found no reversible error, and the U.S. Supreme Court affirmed.

2010Court Refines Miranda Rule

The U.S. Supreme Court in Berghuis v. Thompkins rules that the burden is on suspects to invoke their right to remain silent by saying so. The case concerns a suspect who was read his Miranda rights but refused to sign a form acknowledging that he understood them. He then remained silent for nearly three hours of questioning until giving a one-word answer to a question that was used to convict him. The Court says the suspect waived his right when he made an uncoerced statement to police.

2013Silence Before Miranda Warning May Be Used Against Suspect At Trial

By a 5-4 vote, the U.S. Supreme Court decides in Salinas v. Texas that a suspect’s failure to answer a police officer’s question before he was arrested may be used against the suspect at trial. The case involved Genovevo Salinas, who was convicted of the shooting deaths of two brothers. Before his arrest, Salinas agreed to answer police questions but was silent when asked specifically about his shotgun and shells recovered at the scene. At his trial, the prosecutor pointed out Salinas’ silence on the question, saying it showed he was guilty. The Court says that since Salinas agreed to answer questions before he was arrested, he was not entitled to a Miranda warning nor could he invoke his right against self-incrimination.