In criminal law, the giving of evidence that might tend to expose the witness to punishment for a crime. The term is generally used in relation to the privilege of refusing to give such evidence. In some continental European countries (e.g., Germany), a person fearing self-incrimination may make his own decision as to whether or not he will testify. In Anglo-American practice, a person other than an accused cannot refuse to testify; he may only cite his privilege against self-incrimination, and the judge then decides whether he must testify. If required to testify, he must answer all questions except those he considers to be self-incriminating. The Fifth Amendment to the U.S. Constitution contains a provision that protects a person from being compelled to make self-incriminating statements, one intention being to prevent coercion of testimony. Seealso rights of the accused; exclusionary rule.
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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.
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:
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).
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.)
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.)