privilege against self-incrimination

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Privilege against self-incrimination is a privilege guaranteed by the Fifth Amendment of the United States Constitution. It bans a witness from being compelled to give testimony that is self-incriminating.

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The right against self-incrimination applies only when the accused is compelled to make a testimonial communication that is incriminating, according to the United States Supreme Court in Fisher v. United States

In addition, in State v. Andrews, the Supreme Court of New Jersey observed that testimonial communications can take any form but must imply assertions of facts for the Fifth Amendment privilege against self-incrimination to attach. Therefore, criminal defendants may lawfully be compelled to display their physical characteristics and complete physical acts because these actions do not require individuals to disclose any knowledge they might have or declare their guilt.

[Last updated in January of 2024 by the Wex Definitions Team]