The privilege against self-incrimination is a foundational due-process right that allows a person to refuse to answer questions or provide evidence that could be used to prosecute them. Its roots are commonly traced to English common law reactions against the Star Chamber's compelled oaths in the 17th century, and the principle nemo tenetur se ipsum accusare ("no one is bound to accuse himself").
In the United States, the right is enshrined in the Fifth Amendment to the Constitution, which states that no person "shall be compelled in any criminal case to be a witness against himself." The U.S. Supreme Court expanded its practical reach in Miranda v. Arizona (1966), requiring police to warn suspects in custody of their right to remain silent before interrogation. Earlier, Malloy v. Hogan (1964) applied the privilege to state proceedings through the Fourteenth Amendment.
Internationally, the right appears in:
- Article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR, 1966), which guarantees that anyone charged with a criminal offence shall "not be compelled to testify against himself or to confess guilt."
- Article 6 of the European Convention on Human Rights, where the European Court of Human Rights has read the privilege into the broader right to a fair trial (e.g., Funke v. France, 1993; Saunders v. United Kingdom, 1996).
- The Rome Statute of the International Criminal Court, Article 55, which grants persons under investigation the right not to incriminate themselves or confess guilt.
The privilege typically covers testimonial communications but not all physical evidence such as fingerprints, blood samples, or handwriting exemplars. It can be waived, and in many jurisdictions immunity grants (use immunity or transactional immunity) can compel testimony by removing the prosecutorial risk. Compelled corporate records and required regulatory disclosures often fall outside its scope, an area of ongoing litigation in digital-era cases involving passwords and biometric device unlocking.
Example
In 2013, during U.S. congressional hearings on the IRS targeting controversy, official Lois Lerner invoked her Fifth Amendment right against self-incrimination and declined to answer questions before the House Oversight Committee.
Frequently asked questions
In the United States, a witness can invoke the Fifth Amendment in civil, legislative, or administrative proceedings if their answers could expose them to future criminal prosecution, though adverse inferences may be drawn in civil cases.
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