Self-incrimination
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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.
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Canadian law [edit]
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:
- 11. Any person charged with an offense has the right … c) not to be compelled to be a witness in proceedings against that person in respect of the offense…
An important distinction[dubious ] 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 offense being considered, must give testimony. However, this testimony cannot later be used against the person in another case. Section 13 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.
Indian law [edit]
In India, the defendant has the right against self-incrimination, but witnesses are not given the same right.[1]
English & Welsh law [edit]
The right against self-incrimination originated in England and Wales. 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. As with other features of Scots criminal and civil law, both common and statute law originated differently from that in England and Wales.
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, 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.
United States law [edit]
The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves. The privilege against self-incrimination is "[t]he privilege derived from the Fifth Amendment, U.S. Const., and similar provisions in the constitutions of states....[that] requires the government to prove a criminal case against the defendant without the aid of the defendant as a witness against himself...."[2] To "plead the Fifth" is to refuse 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."[3]
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." The suspect must be warned, prior to the interrogation, that he/she has the right to remain silent, that anything he/she says may be used against him/her in a court of law, that he/she has the right to the presence of an attorney, and that, if he/she cannot afford an attorney, one will be appointed for him/her. Further, only after such warnings are given and understood, may the individual knowingly waive them and agree to answer questions or make a statement. [4]
Legal definitions of self-incrimination [edit]
- 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.)
See also [edit]
References [edit]
Further reading [edit]
- Levy, Leonard W. (1986) [1969]. Origins of the Fifth Amendment (Reprint ed.). New York: Macmillan. ISBN 0-02-919580-2.
