Self-incrimination
Encyclopedia
Self-incrimination is the act of accusing oneself 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; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is a refusal to answer a question because the response could form self incriminating evidence. Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.
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 his rights to remain silent
and to obtain an attorney. 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."
. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c)
states:
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. Section 13
of the Charter states:
. 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 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, 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).
states that "No person accused of any offence shall be compelled to be a witness against himself."
A survey of the current law in various countries reveals that in USA, Canada and India in view of the constitutional provisions against self incrimination the Courts have required the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of interrogation or trial, into the right to silence vested in the suspect or accused.
It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one's mind is being resorted to, thereby nullifying the validity and legitimacy of the Right to Silence.
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
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; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
United States law
The Fifth Amendment to the United States ConstitutionFifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is a refusal to answer a question because the response could form self incriminating evidence. Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.
In Miranda v. Arizona
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
(1966) the United States Supreme Court ruled that the Fifth Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...
interrogated in custody of his rights to remain silent
Right to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
and to obtain an attorney. Justice Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
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."
Canadian law
In Canada, similar rights exist pursuant to the Charter of Rights and FreedomsCanadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c)
Section Eleven of the Canadian Charter of Rights and Freedoms
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
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. Section 13
Section Thirteen of the Canadian Charter of Rights and Freedoms
Section Thirteen of the Canadian Charter of Rights and Freedoms is a section of the Charter which, along with section 11 , specifies rights regarding self-incrimination.It reads:...
of the Charter states:
- 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.
United Kingdom law
The right against self-incrimination originated in England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. In countries deriving their laws as an extension of the history of English Common Law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination.
The Criminal Justice and Public Order Act 1994
Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...
amended the right to silence
Right to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
by allowing inferences to be drawn by the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
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).
Republic of India law
Article 20, clause 3 of the Indian constitutionConstitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
states that "No person accused of any offence shall be compelled to be a witness against himself."
A survey of the current law in various countries reveals that in USA, Canada and India in view of the constitutional provisions against self incrimination the Courts have required the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of interrogation or trial, into the right to silence vested in the suspect or accused.
It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one's mind is being resorted to, thereby nullifying the validity and legitimacy of the Right to Silence.
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.)
External links
- Don't Talk to the Police - Professor James DuaneJames Duane (professor)James Duane is a Regent University School of Law professor, former criminal defense attorney, and Fifth Amendment expert. He received some notoriety for his of a lecture he gave to a group of law students, which instructs citizens to never talk to police under any circumstances...
of the Regent University School of Law - Don't Talk to the Police - Officer George Bruch from the Virginia Beach police department