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Criminal Procedure • 5th Amendment
CRIMPRO#057
Legal Definition
The 5th Amendment right against compelled testimony can be asserted by anyone in any type of case. If asked a question under oath wherein the answer might tend to incriminate, one is entitled to the privilege. However, one must assert the privilege the first time the question is asked, otherwise the privilege is waived for subsequent criminal prosecutions; this applies to civil proceedings as well.
Note that the right does not allow one to prevent the government from using physical evidence, and the government can compel one to provide blood, handwriting, voice, and hair samples.
Note that the right does not allow one to prevent the government from using physical evidence, and the government can compel one to provide blood, handwriting, voice, and hair samples.
Plain English Explanation
Any time a person is being asked a question, while under oath, they are allowed to plead the 5th if the answer they may otherwise provide has the potential of self-incrimination. However, the privilege is lost if the person tries to invoke it after having already provided an answer. For example, imagine if Bob is being investigated for a murder that occurred at a liquor store last night. While under oath, Bob is asked, "Where were you last night?" Bob responds, "I was at my friend Sam's house." Bob then realizes that Sam's house is across the street from the liquor store and he has now provided evidence that he was near the scene of the crime. The police ask Bob to clarify, "You were at Sam's house last night?" Bob now says, "I plead the fifth." Unfortunately for Bob, he has lost his privilege to not answer this specific question as he previously waived it by answering.
Additional limitations of the 5th Amendment are: (1) it doesn't prevent the government from using physical things you've created (like a diary or notes) from prosecuting you, even though they may be self-incriminating; and (2) it doesn't prevent the government from forcing you to assist them in their investigation by providing things like samples of your blood, handwriting, voice, or hair.
Additional limitations of the 5th Amendment are: (1) it doesn't prevent the government from using physical things you've created (like a diary or notes) from prosecuting you, even though they may be self-incriminating; and (2) it doesn't prevent the government from forcing you to assist them in their investigation by providing things like samples of your blood, handwriting, voice, or hair.
Related Concepts
In assessing double jeopardy, when do two crimes constitute the same offense?
Under what circumstances may a defendant be retried?
What limitations does the 5th Amendment place on the prosecutor's comments?
When does jeopardy attach, and what prevents double jeopardy?
When may the 5th Amendment right against compelled testimony be eliminated?
