The Fifth Amendment protects individuals from being forced to
incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to "an accusation or charge of crime", or as involving oneself (or another person) "in a criminal prosecution or the danger thereof". The
privilege against compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself". To "plead the Fifth" is to refuse to answer any question because "the implications of the question, in the setting in which it is asked" lead a claimant to possess a "reasonable cause to apprehend danger from a direct answer", believing that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Historically, the legal protection against compelled self-incrimination was directly related to the question of torture for extracting information and confessions. The legal shift away from widespread use of torture and
forced confession dates to the turmoil of the late 16th and early 17th century in
England. The
Supreme Court of the United States has held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." However, Professor
James Joseph Duane of the
Regent University School of Law argues that the Supreme Court, in a 5–4 decision in
Salinas v. Texas, significantly weakened the privilege, saying "your choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it." In the
Salinas case, Justices Alito, Roberts, and Kennedy held that "the Fifth Amendment's privilege against self-incrimination does not extend to defendants who simply decide to remain mute during questioning. Long-standing judicial precedent has held that any witness who desires protection against self-incrimination must explicitly claim that protection." Justice Thomas, siding with Alito, Roberts and Kennedy, in a separate opinion, held that, "Salinas' Fifth Amendment privilege would not have been applicable even if invoked because the prosecutor's testimony regarding his silence did not compel Salinas to give self-incriminating testimony." Justice Antonin Scalia joined Thomas' opinion.
Legal proceedings and congressional hearings The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding. The Supreme Court ruled that the privilege applies whether the witness is in a federal court or, under the
incorporation doctrine of the Fourteenth Amendment, in a state court, and whether the proceeding itself is criminal or civil. The right to remain silent was asserted at grand jury or
congressional hearings in the 1950s, when witnesses testifying before the
House Committee on Un-American Activities or the
Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the
Communist Party. Under the
Red Scare hysteria at the time of
McCarthyism, witnesses who refused to answer the questions were described by McCarthy as "fifth amendment communists". They lost jobs or positions in unions and other political organizations, and suffered other repercussions after "taking the Fifth". Senator
Joseph McCarthy (R-WI) routinely asked witnesses, "Are you now, or have you ever been, a member of the Communist Party?" while he was chairman of the Senate Government Operations Committee Permanent Subcommittee on Investigations. Admitting to a previous Communist Party membership was not sufficient. Witnesses were also required to "name names", i.e. implicate others they knew to be Communists or who had been Communists in the past.
Academy Award winning director
Elia Kazan testified before the
House Committee on Un-American Activities that he had belonged to the Communist Party briefly in his youth. He also "named names", which incurred enmity of many in Hollywood. Other entertainers such as
Zero Mostel found themselves on a
Hollywood blacklist after taking the Fifth, and were unable to find work for a while in show business. The amendment has also been used by defendants and witnesses in criminal cases involving the
American Mafia.
Statements made to non-governmental entities The privilege against self-incrimination does not protect an individual from being suspended from membership in a non-governmental,
self-regulatory organization (SRO), such as the
New York Stock Exchange (NYSE), where the individual refuses to answer questions posed by the SRO. An SRO itself is not a law enforcement entity or court of law, and cannot send a person to jail. SROs, such as the NYSE and the
National Association of Securities Dealers (NASD), are generally not considered to be state actors. See
United States v. Solomon,
D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., and
Marchiano v. NASD. SROs also lack subpoena powers. They rely heavily on requiring testimony from individuals by wielding the threat of loss of membership or a bar from the industry (permanent, if decided by the NASD) when the individual asserts the Fifth Amendment privilege against compelled self-incrimination. If a person chooses to provide statements in testimony to the SRO, the SRO may provide information about those statements to law enforcement agencies, who may then use the statements in a prosecution of the individual.
Custodial interrogation The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers. Originally, at
common law, even a confession obtained by
torture was admissible. However, by the eighteenth century, common law in England provided that coerced confessions were inadmissible. The common law rule was incorporated into American law by the courts. The Supreme Court has repeatedly overruled convictions based on such confessions, in cases such as
Brown v. Mississippi, . Law enforcement responded by switching to more subtle techniques, but the courts held that such techniques, even if they do not involve physical torture, may render a confession involuntary and inadmissible. In
Chambers v. Florida (1940) the Court held a confession obtained after five days of prolonged questioning, during which time the defendant was held incommunicado, to be coerced. In
Ashcraft v. Tennessee (1944), the suspect had been interrogated continuously for thirty-six hours under electric lights. In
Haynes v. Washington, the Court held that an "unfair and inherently coercive context" including a prolonged interrogation rendered a confession inadmissible.
Miranda v. Arizona (1966) was a landmark case involving confessions.
Ernesto Miranda had signed a statement confessing to the crime, but the Supreme Court held that the confession was inadmissible because the defendant had not been advised of his 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." Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement before being questioned as to the specifics of the crime. 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. Before 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 it is customarily delivered by the police to an individual before questioning.
Miranda has been clarified by several further Supreme Court rulings. For the warning to be necessary, the questioning must be conducted under "custodial" circumstances. A person detained in jail or under arrest is, of course, deemed to be in police custody. Alternatively, a person who is under the
reasonable belief that he may not freely leave from the restraint of law enforcement is also deemed to be in "custody". That determination of "reasonableness" is based on a totality of the objective circumstances. A mere presence at a police station may not be sufficient, but neither is such a presence required. Traffic stops are not deemed custodial. The Court has ruled that age can be an objective factor. In
Yarborough v. Alvarado (2004), the Court held that "a state-court decision that failed to mention a 17-year-old's age as part of the
Miranda custody analysis was not objectively unreasonable". In her concurring opinion
Justice O'Connor wrote that a suspect's age may indeed "be relevant to the 'custody' inquiry"; the Court did not find it relevant in the specific case of
Alvarado. The Court affirmed that age could be a relevant and objective factor in
J.D.B. v. North Carolina where they ruled that "so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test". Unless and until the suspect actually states that he is relying on that right, police may continue to interact with (or question) him, and any voluntary statement he makes can be used in court. The mere act of remaining silent is, on its own, insufficient to imply the suspect has invoked those rights. Furthermore, a voluntary reply, even after lengthy silence, can be construed as implying a waiver. The new rule will defer to police in cases where the suspect fails to assert the right to remain silent. This standard was extended in
Salinas v. Texas in 2013 to cases where individuals not in custody who volunteer to answer officers' questions and who are not told their
Miranda rights. The Court stated that there was no "ritualistic formula" necessary to assert this right, but that a person could not do so "by simply standing mute".
Production of documents Under the Act of Production Doctrine, the act of an individual in producing documents or materials (e.g., in response to a subpoena) may have a "testimonial aspect" for purposes of the individual's right to assert the Fifth Amendment right against self-incrimination to the extent that the individual's act of production provides information not already in the hands of law enforcement personnel about the (1) existence; (2) custody; or (3) authenticity, of the documents or materials produced. See
United States v. Hubbell. In
Boyd v. United States, the U.S. Supreme Court stated that "It is equivalent to a compulsory production of papers to make the nonproduction of them a confession of the allegations which it is pretended they will prove".
By corporations Corporations may also be compelled to maintain and turn over records; the Supreme Court has held that the Fifth Amendment protections against self-incrimination extend only to "natural persons". The Court has also held that a corporation's custodian of records can be forced to produce corporate documents
even if the act of production would incriminate him personally. The only limitation on this rule is that the jury cannot be told that the custodian personally produced those documents in any subsequent prosecution of him, but the jury is still allowed to draw adverse inferences from the content of the documents combined with the position of the custodian in the corporation.
Refusal to testify in a criminal case In
Griffin v. California (1965), the Supreme Court ruled that a prosecutor may not ask the jury to draw an inference of guilt from a defendant's
refusal to testify in his own defense. The Court overturned a provision of the California state constitution that explicitly granted such power to prosecutors, finding it unconstitutional.
Refusal to testify in a civil case While defendants are entitled to assert the right against compelled self-incrimination in a civil court case, there are consequences to the assertion of the right in such an action. The Supreme Court has held that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them."
Baxter v. Palmigiano, "[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the
Tod case, 'Silence is often evidence of the most persuasive character.'" "'Failure to contest an assertion ... is considered evidence of acquiescence ... if it would have been natural under the circumstances to object to the assertion in question.'" In
Baxter, the state was entitled to an adverse inference against Palmigiano because of the evidence against him and his assertion of the Fifth Amendment right. Some civil cases are considered "criminal cases" for the purposes of the Fifth Amendment. In
Boyd v. United States, the U.S. Supreme Court stated that "A proceeding to forfeit a person's goods for an offence against the laws, though civil in form, and whether in rem or in personam, is a "criminal case" within the meaning of that part of the Fifth Amendment which declares that no person "shall be compelled, in any criminal case, to be a witness against himself." In
United States v. Lileikis, the court ruled that
Aleksandras Lileikis was not entitled to Fifth Amendment protections in a civil
denaturalization case even though he faced criminal prosecution in Lithuania, the country that he would be deported to if denaturalized.
Federal income tax In some cases, individuals may be legally required to file reports that call for information that may be used against them in criminal cases. In
United States v. Sullivan, the United States Supreme Court ruled that a taxpayer could not invoke the Fifth Amendment's protections as the basis for refusing to file a required federal income tax return. The Court stated: "If the form of return provided called for answers that the defendant was protected from making[,] he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld." In
Garner v. United States, the defendant was convicted of crimes involving a conspiracy to "fix" sporting contests and to transmit illegal bets. During the trial the prosecutor introduced, as evidence, the taxpayer's federal income tax returns for various years. In one return the taxpayer had shown his occupation to be "professional gambler". In various returns the taxpayer had reported income from "gambling" or "wagering". The prosecution used this to help contradict the taxpayer's argument that his involvement was innocent. The taxpayer tried unsuccessfully to keep the prosecutor from introducing the tax returns as evidence, arguing that since the taxpayer was legally required to report the illegal income on the returns, he was being compelled to be a witness against himself. The Supreme Court agreed that he was legally required to report the
illegal income on the returns, but ruled that the right against self-incrimination still did not apply. The Court stated that "if a witness under compulsion to testify makes disclosures instead of claiming the right, the Government has not 'compelled' him to incriminate himself."
Sullivan and
Garner are viewed as standing, in tandem, for the proposition that on a required federal income tax return a taxpayer would probably have to report the amount of the illegal income, but might validly claim the right by labeling the item "Fifth Amendment" (instead of "illegal gambling income", "illegal drug sales", etc.) The United States Court of Appeals for the Eleventh Circuit has stated: "Although the source of income might be privileged, the amount must be reported." The U.S. Court of Appeals for the Fifth Circuit has stated: "...the
amount of a taxpayer's income is not privileged even though the
source of income may be, and Fifth Amendment rights can be exercised in compliance with the tax laws 'by simply listing his alleged ill-gotten gains in the space provided for "miscellaneous" income on his tax form'." In another case, the Court of Appeals for the Fifth Circuit stated: "While the
source of some of [the defendant] Johnson's income may have been privileged, assuming that the jury believed his uncorroborated testimony that he had illegal dealings in gold in 1970 and 1971, the
amount of his income was not privileged and he was required to pay taxes on it." In 1979, the U.S. Court of Appeals for the Tenth Circuit stated: "A careful reading of
Sullivan and
Garner, therefore, is that the self-incrimination privilege can be employed to protect the taxpayer from revealing the information as to an illegal source of income, but does not protect him from disclosing the amount of his income."
Grants of immunity If the government gives an individual immunity, then that individual may be compelled to testify. Immunity may be "transactional immunity" or "use immunity"; in the former, the witness is immune from prosecution for offenses related to the testimony; in the latter, the witness may be prosecuted, but his testimony may not be used against him. In
Kastigar v. United States, the Supreme Court held that the government need only grant use immunity to compel testimony. The use immunity, however, must extend not only to the testimony made by the witness, but also to all evidence derived therefrom. This scenario most commonly arises in cases related to
organized crime.
Record keeping A statutorily required record-keeping system may go too far such that it implicates a record-keeper's right against self-incrimination. A three part test laid out by
Albertson v. Subversive Activities Control Board, is used to determine this: 1. the law targets a highly selective group inherently suspect of criminal activities; 2. the activities sought to be regulated are already permeated with criminal statutes as opposed to essentially being non-criminal and largely regulatory; and 3. the disclosure compelled creates a likelihood of prosecution and is used against the record-keeper. In this case, the Supreme Court struck down an order by the
Subversive Activities Control Board requiring members of the
Communist Party to register with the government and upheld an assertion of the privilege against self-incrimination, on the grounds that statute under which the order had been issued was "directed at a highly selective group inherently suspect of criminal activities." In
Leary v. United States, the court struck down the
Marijuana Tax Act because its record keeping statute required
self-incrimination. In
Haynes v. United States, the Supreme Court ruled that, because convicted felons are prohibited from owning firearms, requiring felons to register any firearms they owned constituted a form of
self-incrimination and was therefore unconstitutional.
Combinations and passwords While no such case has yet arisen, the Supreme Court has indicated that a respondent cannot be compelled to turn over "the contents of his own mind", e.g. the password to a bank account. Lower courts have given conflicting decisions on whether forced disclosure of computer passwords is a violation of the Fifth Amendment. In
In re Boucher (2009), the
US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating "act" under the Fifth Amendment. In
Boucher, production of the unencrypted drive was deemed not to be a self-incriminating act, as the government already had sufficient evidence to tie the encrypted data to the defendant. In January 2012 a federal judge in Denver ruled that a bank-fraud suspect was required to give an unencrypted copy of a laptop hard drive to prosecutors. However, in February 2012 the
Eleventh Circuit ruled otherwise—finding that requiring a defendant to produce an encrypted drive's password would violate the Constitution, becoming the first federal circuit court to rule on the issue. In April 2013, a District Court
magistrate judge in Wisconsin refused to compel a suspect to provide the encryption password to his hard drive after FBI agents had unsuccessfully spent months trying to decrypt the data. The
Oregon Supreme Court ruled that unlocking a phone with a passcode is testimonial under Article I, section 12 of the state constitution, thus compelling it would be unconstitutional. Its ruling implied, however, that unlocking via biometrics may be allowed.
Employer coercion As a condition of employment, workers may be required to answer their employer's narrowly defined questions regarding conduct on the job. If an employee invokes the
Garrity rule (sometimes called the
Garrity Warning or Garrity Rights) before answering the questions, then the answers cannot be used in criminal prosecution of the employee. This principle was developed in
Garrity v. New Jersey, 385 U.S. 493 (1967). The rule is most commonly applied to public employees such as police officers. ==Due process==