Self-incrimination may occur as a result of interrogation or may be made voluntarily. The Fifth Amendment of the Constitution protects a person from being compelled to incriminate oneself. Self-incrimination may also be referred to as self-crimination or self-inculpation.
Federal Protections Against Self-Incrimination
In addition to the protections created by the Fifth Amendment, other federal laws also provide protections related to self-incrimination.
In Malloy v. Hogan, 378 U.S. 1 (1966), the Supreme Court held, "When determining if state officers properly obtained a confession, one must focus on whether the statements were made freely and voluntarily without any direct or implied promised or improper influence." Malloy also incorporated the Fifth Amendment right against self-incrimination against the states.
In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that at trial, if the accused invokes his Fifth Amendment right not to self-incriminate, neither the prosecution nor the judge may tell the jury that that silence is evidence that the defendant is making an admission of guilt.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that "when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized," therefore finding self-incrimination protections in the Fourth Amendment. If the individual is not made aware of his rights (including the right to an attorney and the right to remain silent), then self-incriminating statements the individual makes will be inadmissible in court.
In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court used a narrow interpretation of the right not to testify against oneself. Here, the petitioner was the driver of a car involved in a car crash. After being brought to the hospital, the police had the hospital draw blood; after analyzing the blood, the police found that the petitioner had a blood-alcohol level that was above the legal limit, and so the petitioner was convicted for Driving Under the Influence (DUI). The Court held that while the police could not forced the petitioner to testify against himself, the blood test evidence, while incriminating "was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner." Therefore, the blood sample was admissible and the Court upheld the petitioner's conviction.
Under 18 U.S. Code § 6002, a trial witness who has been granted immunity and refuses to testify, based on the right not to self-incriminate, may still be forced to testify by the presiding judge. Under that statute, if the witness refuses the judge's order, the witness may be held in contempt of court.
The same protections that exist for typical criminal matters may not exist in other matters, particularly those related to tax issues with the Internal Revenue Service (IRS).
However, the Supreme Court held in Beckwith v. United States, 425 U.S. 341 (1976) that the same protection does not apply to a non-custodial interview, such as one held by IRS agents. The non-custodial interview in Beckwith was one that was held at a private home. The Court held that this was not a police-dominated atmosphere; as such, there was not the usual need for safeguards to counteract the compulsion which exists in a custodial environment.
However, the questioned individual may still receive some protections in non-custodial tax matters. When someone is being interviewed by IRS agents with regard to criminal tax matters, the IRS agent is required to provide the questioned individual with appropriate warnings. United States v. Leahey, 434 F.2d 7 (lst Cir. 1970).
State Protections Against Self-Incrimination
At a minimum, states must have the same protections against self-incrimination that federal law offers. While states are not allowed to offer fewer protections than federal law allows, states are permitted to offer more protections. And states will differ as to the additional protections they offer. As such, the protections listed below simply illustrate some of these extra protections, but this is not a comprehensive list.
In Olevik v. State (2017), the Georgia Supreme Court found that Georgia's state constitution gives broader self-incrimination than federal law does. That court held, "Unlike the similar right guaranteed by the Fifth Amendment to the United States Constitution, this state constitutional protection applies to more than mere testimony; it also protects us from being forced to perform acts that generate incriminating evidence." Applied to the case the court was hearing, the court determined that the state constitution prohibits the police "from compelling a person suspected of DUI to blow his deep lung air into a breathalyzer." The Olevik decision essentially addresses the United States Supreme Court's decision in Schmerber, choosing to add additional protections on top of what the Court held in Schmerber.