Under the 5th Amendment, a person may refuse to give any statement that increases the likelihood that they will be accused of, charged with, or prosecuted for a crime. Recognizing that factual circumstances can be ambiguous, and that innocent people making truthful statements can still face criminal investigation or prosecution for those statements, the Supreme Court, in Ohio v. Reiner (2001), held that the constitutional guarantee applies equally to innocent and guilty people.
Though the language of the 5th Amendment suggests that the right exists only in criminal proceedings, it has been applied to civil actions as well. The protection is absolute—opposing counsel, prosecutors, judges, and your own counsel cannot compel you to testify if you believe it might incriminate you. The Supreme Court has also taken an expansive view of the types of proceedings where the right applies, applying it to virtually all legal proceedings, including depositions and grand jury hearings.
In criminal proceedings, when a defendant refuses to testify, the jury is not allowed to consider that refusal when rendering a verdict. In such situations, it’s commonplace for the judge to give the jury a specific instruction to that effect.
In civil lawsuits, however, such as personal injury or breach of contract, the jury may consider a party’s unwillingness to testify when deciding the case. In addition, if a party opts not to answer questions during the gathering of evidence before trial on grounds that the answers might incriminate them, that party may consequently be barred from testifying about those same issues at trial.
Although a witness may be compelled to take the stand in a criminal or civil trial (through the use of a subpoena), the witness may still exercise rights under the 5th Amendment under questioning. The provisions of the 5th Amendment apply to all persons in all contexts, whether as defendants or witnesses. As a witness in a civil or criminal matter, you have the right to answer those questions that you do not believe might incriminate you, and you can refuse to answer those that may.
The Supreme Court has interpreted the language of the 5th Amendment to cover only “testimonial” evidence, or evidence made in the form of a statement. Accordingly, you cannot refuse to be fingerprinted, to have a DNA test taken, or to allow the government to collect a blood sample by asserting your rights under the 5th Amendment. You might, however, have other legal grounds for refusing such things.
In 1966, in Miranda v. Arizona, the United State Supreme Court held that the provisions of the 5th Amendment apply any time a person is taken into custody. Accordingly, the court established a specific set of warnings that must be given to anyone taken into custody. If those warnings are not given, any statements made by a defendant may be inadmissible at trial. The warnings include notification of the right to remain silent and that anything subsequently said can be used at trial.
The constitutional guarantees under the 5th Amendment can be complex and confusing. Don’t try to figure them out on your own. Your first request, when taken into custody, should be the opportunity to speak with an attorney.