Self-incrimination
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Self-incrimination is the act of accusing one's self of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: Directly by means of interrogation where information of a self-incriminatory nature is disclosed. Indirecectly when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person. In countries deriving their laws as an extension of the history of the Common Law of England, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination.
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United Kingdom law
The right against self-incrimination originated in England and Wales.
The Criminal Justice 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
The Fifth Amendment to the United States Constitution includes the text:
- No person shall be ... compelled in any criminal case to be a witness against himself
The Fifth Amendment protects witnesses from being forced to incriminate themselves, and applies wherever and whenever an individual is compelled to testify. To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence.
Miranda v. Arizona
The United States of America Supreme Court Opinion Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto Miranda had signed a statement confessing the crime, but the Supreme Court held that the confession was inadmissible because the defendant had not been warned of his Fifth Amendment rights. The Court held:
"the prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean 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. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."
The warning Chief Justice Earl Warren referred to is now called the Miranda Warning, and is delivered by police before interrogations.
Canadian law
In Canada, similar rights exist pursuant to the Charter of Rights and Freedoms. Section 11 of the Charter provides that a person cannot be compelled to be a witness in a proceeding against them. 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. Again from the Charter:
- "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."
Legal definitions of Self-incrimination
- 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. (There are many caveats following this section.)
- 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. (There are links to other related subjects: Compulsory self-incrimination; Link-in-chain; Privilege against self-incrimination.)
References
- Origins of the Fifth Amendment, by Levy, Leonard W. - Macmillan, New York. Reprint 1986. ISBN 0-02-919580-2 - Pulitizer Prize winner original edition 1969.
