Self-incrimination

Last updated August 15, 2024

In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution.^[1] 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.^[2]

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. There are 108 countries and jurisdictions that currently issue legal warnings to suspects, which include the right to remain silent and the right to legal counsel.^[3] These laws are not uniform across the world; however, members of the European Union have developed their laws around the EU's guide.^[4]

Australia

A limited right against self-incrimination exists at common law in Australia, but is not protected by the federal constitution or at state level where the majority of criminal law prosecutions take place. In Sorby v Commonwealth (1983), the High Court affirmed that the common-law privilege against self-incrimination could only be abrogated by explicit statutory provisions. A number of federal statutes require individuals to provide truthful answers to questions posed by government agencies – including the Australian Crime Commission, the Australian Competition and Consumer Commission, the Australian Security Intelligence Organisation, and the Australian Securities and Investments Commission – and provide no exemption for self-incriminatory statements.^[5]

Canada

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:

Any person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence ...

An important caveat in Canadian law is that this does not apply to a person who is not charged in the case in question.^[6] A person issued a 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:

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.

Historically, in Canadian common law, witnesses could refuse to give testimony that would self-incriminate. However, section 5(1) of the Canada Evidence Act eliminated that absolute common law privilege by instead compelling witnesses to testify. In exchange, section 5(2) of the same act granted the witnesses immunity from having that evidence used against them in the future except in the case of perjury or impeachment. While these provisions of the Canada Evidence Act are still operational, they have been overtaken in their application by the immunities granted by sections 13 and 7 of the Canadian Charter of Rights and Freedoms.^[7]

China

After the 1996 amendments to the Criminal Procedure Law, Article 15 states that "It shall be strictly prohibited to extort confessions by torture, gather evidence by threat, enticement, deceit, or other illegal means, or force anyone to commit self-incrimination."^[8] In 2012 the law was also re-amended to strengthen the human rights protection of criminal suspects.^[9] China has since recognized the right against self-incrimination and forced confessions are prohibited by law. However, in practice as human rights violations in China continue to be committed, it is still common practice for police to use torture on suspects to obtain forced confessions.^[10] China's accession to the United Nations's International Covenant on Civil and Political Rights in 1998 also guarantees Chinese citizens the right against self-incrimination; however, China has not ratified the treaty.^[11]

India

In India, under Article 20 (3) of the Constitution, the defendant has the right against self-incrimination, but witnesses are not given the same right.^[12]

A defendant must be informed of their rights before making any statements that may incriminate them. Defendants must not be compelled to give any statements. In the case that a defendant is pressured into giving a statement that is self-incriminating, the statement will not be admissible in a court of law.^[13] The Code of Criminal Procedure and the Indian Constitution give defendants the Right to Silence, i.e. the right to withhold self-incriminating information to authorities. Defendants must inform the authorities that they are exercising their Right to Silence; withholding information is not considered using their right to withhold information that can potentially be self-incriminating.^[13] In order to exercise their right to remain silent, the defendant must verbally and clearly state that they are doing so. For example, a defendant can say, "I am exercising my right to remain silent and will not be answering any further questions."^[13] Article 20 (3) does not pertain to those who made a confession willingly without being intimidated or coerced into making such statement.^[14]

United Kingdom

England and Wales

The right against self-incrimination originated in England and Wales.^[15] 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.

The current statutory basis for the privilege against self-incrimination for defendants in criminal trials in England and Wales is the Criminal Evidence Act 1898 s1(2) (as amended):^[16]^[17]

a person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings

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, since the accused refused to provide the explanation during the time of the police questioning. The jury is also free not to make such an inference.^[18]

Scotland

In Scots criminal and civil law, both common and statute law originated and operate separately from that in England and Wales. In Scots law, the right to silence remains unchanged by the above, and juries' rights to draw inferences are severely curtailed.

On January 25, 2018, the law in Scotland changed in regard to people being detained by police. These changes only affect people who are arrested after January 25, 2018. Those who are arrested have 'the right to remain silent' and are not obligated to answer questions asked by police. However, although someone being detained by police does not need to answer questions regarding the crime they are accused of, it is mandatory for detainees to answer basic questions of identity such as: name, date of birth, address, and nationality.^[19]

United States

The Fifth Amendment to the United States Constitution protects the accused from being forced to incriminate themselves in a crime. The Amendment reads:

No person ... shall be compelled in any criminal case to be a witness against himself ...^[20]

Additionally, under the Miranda ruling, a person also has the right to remain silent while in police custody so as not to reveal any incriminating information. In order to invoke this constitutional right to remain silent, a person must explicitly and unambiguously tell officers that they are exercising this right to remain silent.^[13] Therefore, staying silent without a prior exclamation that one is exercising this constitutional right does not invoke the right.^[13]

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 them their right to remain silent and their right to an attorney.^[21]^[22] 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".^[23]

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".^[24] 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 have an attorney and if one cannot afford an attorney, one will be appointed to defend such person. Further, only after such warnings are given and understood, may the individual knowingly waive them and agree to answer questions or make a statement.^[25]

It is also important to note that the Fifth Amendment protects certain types of evidence, specifically testimonial evidence, which are statements that are spoken by the person in question that are made under oath.^[26] For a list of other different types of evidence, see Evidence (law).

Shift in court decision regarding handcuff usage

The United States Supreme Court rulings of Miranda v. Arizona and Terry v. Ohio leave questions about the types of conduct that are appropriate for both the protection of the public, and criminal suspects' constitutional rights. The use of handcuffs on a suspect during a Terry stop infringes on their Fourth and Fifth Amendment rights.^[27] During the action of handcuffing a suspect, a custodial environment is created, thereby invoking the information of that individual's Miranda rights. The Second Circuit Court maintained the notion that by utilizing handcuffs during a Terry stop, that stop is then automatically transformed into an arrest, thus warranting the reading of Miranda rights, up until the decision of US versus Fiseku.^[27]

In holdings of U.S. versus Fiseku, the defendant argues that the officers’ use of handcuffs convert a Terry stop into an arrest without probable cause, thus violating his Fourth Amendment rights.^[28] The District Court ruled in disagreement with this matter, suggesting that there were unusual circumstances surrounding the investigatory stop, requiring the use of handcuffs in order to ensure the protection of those officers involved. This differs from Second Circuit court rulings of the past.^[27]

In the case of U.S. vs. Newton, a police officer is permitted to utilize handcuffs during a Terry stop if the officer has reason to believe that the detainee poses an immediate physical threat, and that by handcuffing the individual, the potential threat is defused in the least invasive means possible.^[27]

In the case of U.S. vs. Bailey, the Second Circuit court found the officers' original stop to be constitutional, but ruled that the events which transpired after handcuffing took place fell outside the realm of a constitutional Terry stop. This results from both suspects having already been patted down and deemed unarmed.^[27] At which point, the officers had no authority to handcuff either of these men, as they were already proven to be non-threatening.

In both cases, the Second Circuit court made the determination that the use of handcuffs converted these stops into arrests, and were grounds for Miranda. The ruling of U.S. versus Fiseku disrupts this conversion trend by determining otherwise.^[27] The grounds for this holding are ambiguous, given the striking similarities between this court ruling and those of Newton and Bailey. The new verdict could potentially be instituted to enable police officials to impede on citizens' constitutional rights as long as the technique being used is considered to be less intrusive than that of an officer pulling his or her gun on an unarmed suspect.^[27]

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.^[29]

The U.S. Supreme Court has also stated:

Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.^[30]

Related Research Articles

In the United States, the Miranda warning is a type of notification customarily given by police to criminal suspects in police custody advising them of their right to silence and, in effect, protection from self-incrimination; that is, their right to refuse to answer questions or provide information to law enforcement or other officials. Named for the U.S. Supreme Court's 1966 decision Miranda v. Arizona, these rights are often referred to as Miranda rights. The purpose of such notification is to preserve the admissibility of their statements made during custodial interrogation in later criminal proceedings. The idea came from law professor Yale Kamisar, who subsequently was dubbed "the father of Miranda."

Miranda v. Arizona, 384 U.S. 436 (1966), was a landmark decision of the U.S. Supreme Court in which the Court ruled that law enforcement in the United States must warn a person of their constitutional rights before interrogating them, or else the person's statements cannot be used as evidence at their trial. Specifically, the Court held that under the Fifth Amendment to the U.S. Constitution, the government cannot use a person's statements made in response to an interrogation while in police custody as evidence at the person's criminal trial unless they can show that the person was informed of the right to consult with a lawyer before and during questioning, and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights but also voluntarily waived them before answering questions.

<span class="mw-page-title-main">Arrest</span> Law enforcement action

An arrest is the act of apprehending and taking a person into custody, usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questioned further and/or charged. An arrest is a procedure in a criminal justice system, sometimes it is also done after a court warrant for the arrest.

The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.

<span class="mw-page-title-main">Ernesto Miranda</span> American criminal and subject of a United States Supreme Court case

Ernesto Arturo Miranda was an American laborer whose criminal conviction was set aside in the landmark U.S. Supreme Court case Miranda v. Arizona, which ruled that criminal suspects must be informed of their right against self-incrimination and their right to consult with an attorney before being questioned by police. This warning is known as a Miranda warning. Miranda had been convicted of kidnapping, rape, and armed robbery charges based on his confession under police interrogation.

In the United States, the exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. The exclusionary rule may also, in some circumstances at least, be considered to follow directly from the constitutional language, such as the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself" and that no person "shall be deprived of life, liberty or property without due process of law."

Massiah v. United States, 377 U.S. 201 (1964), was a case in which the Supreme Court of the United States held that the Sixth Amendment to the United States Constitution prohibits the government from eliciting statements from the defendant about themselves after the point that the Sixth Amendment right to counsel attaches.

Garrity v. New Jersey, 385 U.S. 493 (1967), was a case in which the Supreme Court of the United States held that law enforcement officers and other public employees have the right to be free from compulsory self-incrimination. It gave birth to the Garrity warning, which is administered by investigators to suspects in internal and administrative investigations in a similar manner as the Miranda warning is administered to suspects in criminal investigations.

The Fifth Amendment to the United States Constitution creates several constitutional rights, limiting governmental powers focusing on criminal procedures. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights.

The right to silence in England and Wales is the protection given to a person during criminal proceedings from adverse consequences of remaining silent. It is sometimes referred to as the privilege against self-incrimination. It is used on any occasion when it is considered the person being spoken to is under suspicion of having committed one or more criminal offences and consequently thus potentially being subject to criminal proceedings.

Malloy v. Hogan, 378 U.S. 1 (1964), was a case in which the Supreme Court of the United States deemed defendants' Fifth Amendment privilege not to be compelled to be witnesses against themselves was applicable within state courts as well as federal courts, overruling the decision in Twining v. New Jersey (1908). The majority decision holds that the Fourteenth Amendment allows the federal government to enforce the first eight amendments on state governments.

Estelle v. Smith, 451 U.S. 454 (1981), was a United States Supreme Court case in which the Court held that, per Miranda v. Arizona (1966), the state may not force a defendant to submit to a psychiatric examination solely for the purposes of sentencing. Any such examination violates the defendant's Fifth Amendment rights against self-incrimination as well as the Sixth Amendment right to counsel, and is therefore inadmissible at sentencing.

Berkemer v. McCarty, 468 U.S. 420 (1984), is a decision of the United States Supreme Court that ruled that a person in police custody following a misdemeanor traffic offense was entitled to the protections of the Fifth Amendment pursuant to the decision in Miranda v. Arizona 384 U.S. 436 (1966). Previously, some courts had been applying Miranda only to serious offenses.

Berghuis v. Thompkins, 560 U.S. 370 (2010), is a landmark decision by the Supreme Court of the United States in which the Court considered the position of a suspect who understands their right to remain silent under Miranda v. Arizona and is aware that they have the right to remain silent, but does not explicitly invoke or waive the right.

Michigan v. Mosley, 423 U.S. 96 (1975), was a United States Supreme Court case in which the Court held that a criminal suspect's assertion of his right to remain silent after a Miranda warning does not preclude the police from re-Mirandizing him and questioning him about a different crime.

New York v. Quarles, 467 U.S. 649 (1984), was a decision by the United States Supreme Court regarding the public safety exception to the normal Fifth Amendment requirements of the Miranda warning.

Chavez v. Martinez, 538 U.S. 760 (2003), was a decision of the United States Supreme Court, which held that a police officer does not deprive a suspect of constitutional rights by failing to issue a Miranda warning. However, the court held open the possibility that the right to substantive due process could be violated in certain egregious circumstances and remanded the case to the lower court to decide this issue on the case's facts.

Pennsylvania v. Muniz, 496 US 582 (1990), is a U.S. Supreme Court case involving the Self-incrimination Clause of the 5th Amendment and the meaning of “testimonial” under the 5th Amendment. A drunk-driving suspect, Muniz, made several incriminating statements while in police custody, and the Supreme Court held that only one of these statements was inadmissible because it was incriminating and testimonial. This testimonial statement was the suspect’s confused response when the police officer asked him for the date when he turned six years old. The other statements were admissible because they either counted as physical evidence for 5th Amendment purposes or fell under the routine booking exception to Miranda v. Arizona.

The right to silence in Australia is the protection given to a person during criminal proceedings from adverse consequences of remaining silent. It is sometimes referred to as the privilege against self-incrimination. It is used on any occasion when it is considered the person being spoken to is under suspicion of having committed one or more criminal offences and consequently thus potentially being subject to criminal proceedings.

Salinas v. Texas, 570 US 178 (2013), is a landmark decision of the Supreme Court of the United States, which the court held 5-4 decision, declaring that the Fifth amendment's self-incrimination clause does not extend to defendants who simply choose to remain silent during questioning, even though no arrest has been made nor the Miranda rights read to a defendant.

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