“Compelled self-incrimination” occurs when a suspect or defendant is forced to make statements that may connect them to or implicate in criminal activity. However, every criminal defendant has a Fifth Amendment right to be free from self-incrimination. This right only applies only to statements (referred to as “testimonial evidence”) and not the production of physical evidence.

Thus, the phrase “compelled self-incrimination” refers to incriminating statements that are forced during trial. However, self-incrimination may be “compelled” during other stages of criminal investigations, including arrest, detention, booking, and other pre-trial phases. Examples of compelled self-incrimination include instances where the police or other officials:

  • Use threats of force, violence, or intimidation to obtain a confession
  • Threaten harm to a family member or loved one in order to obtain a confession or evidence
  • Threaten to seize property in order to obtain a confession
  • Continue to interrogate the defendant after they have refused to speak unless an attorney is present

Are There Protections against Self-Incrimination?

The Fifth Amendment to the Constitution offers protection against compelled self-incrimination and provides the right to refuse to make any statements or answer questions that may help establish the guilt of the person making the statement. Refusing to incriminate one’s self is commonly known as “pleading the Fifth.”

The Right against Self-Incrimination during a Criminal Trial

During a criminal trial, the Fifth Amendment allows a criminal defendant the right not to make any incriminating statements. The privilege against self-incrimination also permits the defendant to choose not to testify if they do not desire to. This means that the judge, prosecutor, and even the defendant’s lawyer may not force the defendant to take the witness stand if the defendant does not want to.

Once a defendant exercises their right not to testify, the jury is not permitted to consider that decision when determining the guilt or innocence of the defendant. For example, if a defendant refuses to take a stand in an assault case, the jury may not use that refusal as a basis of determining the defendant’s guilt.

However, if a defendant chooses to take the stand and testify, they generally cannot only answer some questions and not others. Through their act of taking the stand, defendant is said to have “waived” or given up their Fifth Amendment right not to testify. Once they are on the stand, the defendant will be required to answer any questions permitted by the rules of evidence that the attorneys or judge may have for them.

Does the Privilege against Self-Incrimination Apply to Physical Evidence?

The right against compelled self-incrimination only applies to oral testimony given by the defendant. It does not apply to physical items of evidence such as weapons or drug paraphernalia. Basically, a defendant cannot refuse to provide physical objects of evidence, even if they feel that evidence may be incriminating.

In addition, the privilege against self-incrimination does not apply to pre-trial procedures where the defendant is asked to supply fingerprints or samples of DNA or blood. If the defendant has been asked to supply those physical traits, they cannot refuse even if that evidence may tend to prove their guilt.

Who Can Invoke the Privilege against Compelled Self-Incrimination?

During trial, both the defendant as well as any witness can invoke the privilege against self-incrimination. However, in a criminal case, the rights of witnesses are more limited than defendants.

For example, a witness who is asked to testify can still assert their Fifth Amendment rights and refuse to answer specific questions if the answer would connect them to any criminal activity. However, unlike the defendant, the witness may still be compelled to testify on the stand, usually through a subpoena. They can still refuse to answer questions, but only a defendant has the right not to take the stand and testify.

Do I Need a Lawyer?

The Fifth Amendment is always evolving, particularly as technology becomes more popular. If you feel your rights against compelled self-incrimination have been violated, you should consider speaking with a criminal defense attorney. Violations can occur during trial, or during other procedures such as a police interrogation or arrest.