Amendment 5 — General Protections Against Self Incrimination Doctrine And Practice

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Fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Court has settled upon the principle that the Clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion.[1](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn1amd5 " In Tehan v. United States ex rel. Shott, the Court noted:

Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 416 (1966); see also California v. Byers, 402 U.S. 424, 448–58 (1971) (Harlan, J., concurring); Schmerber v. California, 384 U.S. 757, 760–65 (1966); Miranda v. Arizona, 384 U.S. 436, 460 (1966). For a critical view of the privilege, see Henry Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671 (1968).

")

[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution “shoulder[s] the entire load.” . . .The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. . . By contrast, the Fifth Amendment ’s privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment , stands as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone.

Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 416 (1966); see also California v. Byers, 402 U.S. 424, 448–58 (1971) (Harlan, J., concurring); Schmerber v. California, 384 U.S. 757, 760–65 (1966); Miranda v. Arizona, 384 U.S. 436, 460 (1966). For a critical view of the privilege, see Henry Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671 (1968). To protect these interests and to preserve these values, the privilege “is not to be interpreted literally.” Rather, the “sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.” [2](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn2amd5 " Ullmann, 350 U.S. at 438–39. ") Furthermore, “[t]he privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . .” [3](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn3amd5 " Hoffman v. United States, 341 U.S. 479, 486 (1951); see also Emspak v. United States, 349 U.S. 190 (1955); Blau v. United States, 340 U.S. 332 (1951); Blau v. United States, 340 U.S. 159 (1950). ")

The privilege against self-incrimination parries the general obligation to provide testimony under oath when called upon, but it also applies in police interrogations. In all cases, the privilege must be supported by a reasonable fear that a response will be incriminatory. The issue is a matter of law for a court to determine,[4](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn4amd5 " E.g., Mason v. United States, 244 U.S. 362 (1917). ") and therefore, with limited exceptions, one must claim the privilege to benefit from it.[5](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn5amd5 " The primary exceptions are for a criminal defendant not taking the stand and a suspect being subject to inherently coercive circumstances (e.g., custodial interrogation). See Salinas v. Texas, 570 U.S. 178, 183–86 (2013) (plurality opinion). ") Otherwise, silence in the face of questioning may be insufficient to invoke the privilege because it may not afford an adequate opportunity either to test whether information withheld falls within the privilege or to cure a violation through a grant of immunity.[6](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn6amd5 " In Salinas, the defendant—Salinas—answered all questions during noncustodial questioning about a double murder, other than one about whether his shotgun would match shells recovered at the murder scene. He fell silent on this inquiry, but did not assert the privilege against self-incrimination. At closing argument at Salinas’s murder trial, the prosecutor argued that this silence indicated guilt, and a majority of the Court found the comments constitutionally permissible. The Court affirmed the Texas Supreme Court’s ruling that Salinas had failed to invoke his Fifth Amendment rights because he did not do so explicitly. Although no opinion drew a majority of Justices, in an opinion joined by Chief Justice John Roberts and Justice Anthony Kennedy, Justice Samuel Alito observed that a defendant could choose to remain silent for numerous reasons other than avoiding self-incrimination. Id. at 188–89 (plurality opinion). ") A witness who fails to claim the privilege explicitly when an affirmative claim is required is deemed to have waived it, and waiver may be found where the witness has answered some preliminary questions but desires to stop at a certain point.[7](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn7amd5 " Rogers v. United States, 340 U.S. 367 (1951); United States v. Monia, 317 U.S. 424 (1943). The “waiver” concept here has been pronounced “analytically [un]sound,” with the Court preferring to reserve the term “waiver” “for the process by which one affirmatively renounces the protection of the privilege.” Garner v. United States, 424 U.S. 648, 654 n.9 (1976). Thus, the Court has settled upon the concept of “compulsion” as applied to “cases where disclosures are required in the face of claim of privilege.” Id. “[I]n the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not ‘compelled’ him to incriminate himself.” Id. at 654. Similarly, the Court has enunciated the concept of “voluntariness” to be applied in situations where it is claimed that a particular factor denied the individual a “free choice to admit, to deny, or to refuse to answer.” Id. at 654 n.9, 656–65. ") However, an assertion of innocence in conjunction with a claim of the privilege does not obviate the right of witnesses to invoke it, as their responses still may provide the government with evidence it may later seek to use against them.[8](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn8amd5 " Ohio v. Reiner, 532 U.S. 17 (2001). ")

Although individuals must have reasonable cause to apprehend danger and cannot be the judge of the validity of their claims, a court that would deny a claim of the privilege must be “perfectly clear, from a careful consideration of all the circumstances in the case, that the individual is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.” [9](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn9amd5 " Hoffman v. United States, 341 U.S. 479, 488 (1951) (quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881)). For an application of these principles, see Malloy v. Hogan, 378 U.S. 1, 11–14 (1964), and id. at 33 (White, Stewart JJ., dissenting). Where the government is seeking to enforce an essentially noncriminal statutory scheme through compulsory disclosure, some Justices would apparently relax the Hoffman principles. Cf. California v. Byers, 402 U.S. 424 (1971) (plurality opinion). ") To reach a determination, furthermore, a trial judge may not require a witness to disclose so much of the danger as to render the privilege nugatory. As the Court observed:

[I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.[10](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn10amd5 " Hoffman, 341 U.S. at 486–87. ")

The privilege against self-incrimination is a personal one and cannot be used by or on behalf of any organization, such as a corporation. Thus, a corporation cannot object on self-incrimination grounds to a subpoena of its records and books or to the compelled testimony of those corporate agents who have been given personal immunity from criminal prosecution.[11](https://www.law.cornell.edu/constitution-conan/amendment-5/general-protections-against-self-incrimination-doctrine-and-practice#fn11amd5 " Un