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Self-incrimination is the act of exposing oneself (generally, by making a statement) "to an accusation or charge of crime; to involve oneself or another [person] in a criminal prosecution or the danger thereof." Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
In many legal systems, accused criminals cannot be compelled to incriminate themselves—they may choose to speak to police or other authorities, but they cannot be punished for refusing to do so. The precise details of this right of the accused vary between different countries, and some countries do not recognize such a right at all.
In Canada, similar rights exist pursuant to the Charter of Rights and Freedoms. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c) states:
- 11. Any person charged with an offence has the right … c) not to be compelled to be a witness in proceedings against that person in respect of the offence…
An important distinction in Canadian law is that this does not apply to a person who is not charged in the case in question. A person issued subpoena, who is not charged in respect of the offence being considered, must give testimony. However, this testimony cannot later be used against the person in another case. Section 13 of the Charter states:
- 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
English and Welsh law
The right against self-incrimination originated in England and Wales. In countries deriving their laws as an extension of the history of English Common Law, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination. As with other features of Scots criminal and civil law, both common and statute law originated differently from that in England and Wales.
Applying to England and Wales the Criminal Justice and Public Order Act 1994 amended the right to silence by allowing inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation (in other words, the jury is entitled to infer that the accused fabricated the explanation at a later date, as he or she refused to provide the explanation during the time of the police questioning). The jury is also free not to make such an inference.
United States law
The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself to "an accusation or charge of crime," or as involving oneself "in a criminal prosecution or the danger thereof." The privilege against self-incrimination is "[t]he privilege derived from the Fifth Amendment, U.S. Const., and similar provisions in the constitutions of states....[that] requires the government to prove a criminal case against the defendant without the aid of the defendant as a witness against himself...." To "plead the Fifth" is to refuse to answer a question because the response could form self-incriminating evidence. Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.
In Miranda v. Arizona (1966) the United States Supreme Court ruled that the Fifth Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect interrogated in custody of his rights to remain silent and to obtain an attorney. Justice Robert H. Jackson further notes that "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."
Miranda warnings must be given before there is any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Suspects must be warned, prior to the interrogation, that they have the right to remain silent, that anything they say may be used against them in a court of law, that they have the right to the presence of an attorney, and that, if an attorney cannot be afforded, one will be appointed. Further, only after such warnings are given and understood, may the individual knowingly waive them and agree to answer questions or make a statement.
Legal definitions and privileges
- Black's Law Dictionary (USA):
SELF-INCRIMINATION: Acts or declarations either as testimony at trial or prior to trial by which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as provisions in many state constitutions and laws, prohibit the government from requiring a person to be a witness against himself involuntarily or to furnish evidence against himself.
- Barron's Law Dictionary (USA):
SELF-INCRIMINATION, PRIVILEGE AGAINST the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself which will subject him or her to an incrimination. This right under the Fifth Amendment (often called simply PLEADING THE FIFTH) is now applicable to the states through the due process clause of the Fourteenth Amendment, 378 U.S. 1,8, and is applicable in any situation, civil or criminal where the state attempts to compel incriminating testimony.
--Barron's Law Dictionary, p. 434 (2d ed. 1984).
Truthful statements by an innocent person
An incriminating statement includes any statement that tends to increase the danger that the person making the statement will be accused, charged or prosecuted – even if the statement is true, and even if the person is innocent of any crime. Thus, even a person who is innocent of any crime who testifies truthfully can be incriminated by that testimony. The United States Supreme Court has stated that the Fifth Amendment privilege:
- protects the innocent as well as the guilty.... one of the Fifth Amendment’s basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances..... truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.
The U.S. Supreme Court has also stated:
- Black's Law Dictionary (5th ed.). 1979. p. 690.
- Cornell University Law School. "FIFTH AMENDMENT: AN OVERVIEW". cornell.edu.
- Black's Law Dictionary, p. 690 (5th ed. 1979).
- Black's Law Dictionary, p. 1078 (5th ed. 1979).
- North Carolina Wesleyan College (November 11, 2000). "SELF-INCRIMINATION: RIGHT OR PRIVILEGE?". ncwc.edu.
- Illinois Institute of Technology Chicago–Kent College of Law (July 22, 2013). "MIRANDA v. ARIZONA". oyez.org.
- Alex McBride (December 2006). "SUPREME COURT HISTORY EXPANDING CIVIL RIGHTS Miranda v. Arizona (1966)". pbs.org.
- Watts v. Indiana, 338 U.S. 49 (1949)
- Cornell University Law School. "Syllabus SUPREME COURT OF THE UNITED STATES 384 U.S. 436 Miranda v. Arizona CERTIORARI TO THE SUPREME COURT OF ARIZONA". cornell.edu.
- Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
- Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam).
- Ullmann v. United States, 350 U.S. 422, 426 (1956) (footnote omitted).
- Levy, Leonard W. (1986) . Origins of the Fifth Amendment (Reprint ed.). New York: Macmillan. ISBN 0-02-919580-2.