Interpretation and Scope of the Self-Incrimination Clause

The Fifth Amendment’s right against self-incrimination permits individuals to refuse to answer questions or disclose information that could be used against them in a criminal prosecution. The purpose of this right is to inhibit the government from compelling a confession through force, coercion, or deception. Confessions produced by these methods are deemed unreliable because they are often involuntary, unwitting, or the result of the accused’s desire to avoid further browbeating rather than being the product of candor or a desire to confess.

The Self-Incrimination Clause applies to every type of legal proceeding, whether it is civil, criminal, or administrative in nature. Traditionally, the privilege against self-incrimination was most frequently asserted during the trial phase of legal proceedings, where individuals are placed under oath and asked questions on the witness stand. However, in the twentieth century application of the privilege was extended to the pretrial stages of legal proceedings as well. In civil cases, for example, the right against self-incrimination may be asserted when potentially incriminating questions are posed in depositions and interrogatories.

In criminal proceedings, the U.S. Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966) established the rules under which the Self-Incrimination Clause applies to proceedings before trial. In Miranda, the Court held that any statements made by a defendant while in police custody will be inadmissible during prosecution unless the police first warn the defendants that they have (1) the right to remain silent; (2) the right to consult an attorney before being questioned by the police; (3) the right to have an attorney present during police questioning; (4) the right to a court appointed attorney if the defendant cannot afford to hire a private attorney; and (5) the right to be informed that any statements they make can and will be used against them at trial.

The Miranda case acknowledged that these warnings were not expressly mentioned anywhere in the text of the federal Constitution. However, the Court concluded that the warnings constituted an essential part of a judicially created buffer zone that is necessary to protect rights that throughout the Bill of Rights are expressly afforded to criminal defendants. Thus, if a defendant confesses to a crime or makes an otherwise incriminating statement to the police, that statement will be generally excluded from trial unless the defendant was first read the Miranda warnings.

Because of its lack of textual support in the federal Constitution, legal observers have long predicted the demise of Miranda. Much of this speculation has been fueled by subsequent cases in which the Supreme Court carved out exceptions to Miranda. For example, the Court ruled that when a defendant makes an un-Mirandized incriminating statement followed by a later Mirandized confession, the subsequent confession should not be excluded from trial(see Oregon v. Elstad, 470 U.S. 298 [1985]). However, law enforcement officials cannot completely ignore the requirement of Miranda warnings. In 2004, the Court reviewed a case in which officers interrogated a suspect for 30 to 40 minutes without Miranda warnings, eliciting a confession during the process. Once the suspect confessed, the officers gave the Miranda warnings and then led the suspect to give the same account for a second time. In this instance, the Court determined that the confession was involuntary and that this practice violated Miranda. (Missouri v. Seibert, 542 U.S. 600 [2004]).


Inside Interpretation and Scope of the Self-Incrimination Clause