Right Against Self Incrimination

by Daniel S Garner on Jan. 12, 2018


Summary: Right to remain silent

The right of not having to incriminate oneself is thought by some to be a reflection of the framer’s objection to the English tradition of judicial torture and having the witness pledge to answer all questions truthfully without knowing the subject matter. While others believe it stemmed from the fact that defendants often represented themselves. Judicial torture and the oaths were often used to oppress political and religious dissenters.  One reason for the rule was fear that the guilty would be tempted to swear falsely and be damned by God. The accused representing himself, therefore, literally could not be called to be a witness against themselves. Defendants typically represented themselves and could speak throughout the trial by making statements heard by the jury and by examining witnesses. However, defendants could also be pressed by the courts questioning them to admit wrongdoing.

People asserting their right against self-incrimination became more common as custodial interrogations by the police became more common. Like other constitutional rights the self-incrimination clause developed and evolved through the courts. In the early 1800’s the federal government prosecuted very few cases and the Court interpreted that the self-incrimination clause did not apply to the states. It wasn’t until 1964 that the Supreme Court held the self-incrimination clause applied to the states through the Fourteenth Amendment. The court also held that the testimony compelled in state court could not be used against the witness in a federal prosecution. The Miranda Court dramatically changed our country’s application of the self-incrimination clause. Under Miranda the interrogation of arrested persons by the police was presumptively the product of unconstitutional compulsion in the absence of the specific warnings. After Miranda, a suspect in custody is prohibited from being interrogated without a knowing and voluntary waiver of the rights to silence and counsel.

After Miranda, the next judicial step was defining the meaning of custody, interrogation, waiver, and the consequences of invoking silence and/or counsel. Under Miranda, statements that were not admissible due to a breach of the self-incrimination clause can be admitted for purposes of impeachment. The privilege outside a custodial police interrogation protects against compelled testimonial evidence tending to incriminate the witness and an inference of guilt from silence at a criminal trial. The protection is only against testimonial evidence, therefore fingerprints, and other physical evidence are not protected.  Where a violation of the Self-Incrimination Clause is the product of a directly coerced or compelled confession, the government may not use the confession or any evidence that is the fruit of such coercion in a later case.

It is also critical to understand that if the suspect does not actively claim the privilege against self-incrimination, the privilege will be deemed waived by the court. This means that you have to actually assert your right to remain silent, you simply can’t sit there in silence. For example, if a question is asked to you by the state, you have to state that you are asserting your right to remain silent. Direct physical or psychological coercion by the police that produces a confession is inadmissible whether or not a waiver has occurred. A criminal defendant who elects to take the stand waives the privilege against self-incrimination.

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