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What is Self-Incrimination?

  • Birdsall Obear

Have you heard during an arrest or trial the mentioning of the slogan, "I plead the Fifth"? What does it mean, or what's the implication of taking such a stand? 

Self-incrimination refers to the act of implicating oneself in a crime or exposing oneself to criminal prosecution. This happens when a suspect or a criminal defendant makes statements that may link or associate them in criminal activity.

Self-incrimination is contained in the Fifth Amendment to the U.S Constitution. Basically, It addresses the suspect's or accused rights, the due process of law, and associated matters. Besides granting the accused the right to choose not to incriminate themselves, it prohibits being tried twice for the same crime.

The Amendment states, "No person shall be compelled in any criminal case to be a witness against himself." And invoking the same is said to be "pleading the Fifth". Apart from incriminating statements made during the trial, one can self-incriminate himself during arrest, detention, booking or other related pre-trial stages. We can say a compelled self-incrimination happens when police or other officials do the following:

  • Use threats, violence, and/or intimidation to obtain a confession.
  • Threaten to cause harm to a loved one or family member in order to obtain a confession.
  • Impend to take hold of property to compel the suspect to make a confession.
  • Proceed to question the defendant even after they've refused to answer unless an attorney is present.

What Happens During Trial?

During a trial, the Fifth Amendment grants the accused right not to testify against himself or make convicting statements that can act as evidence against them. If a defendant "pleads the Fifth", neither the judge nor the jury is allowed to use their refusal as a basis when making the trial decision.

On the other hand, if the accused chooses to testify, then they normally cannot select which questions to answer and which not to. So, if the defendant decides to take the stand and testify, we say they've "waived" or "given up their Fifth Amendment right". Consequently, they'll be required to respond to any interrogation permissible by the rules of evidence from the judge or attorney. A caveat to this is that a person may testify to certain things and invoke the 5th on others. 

Besides the Fifth Amendment, there some other federal laws that provide more protection regarding self-incrimination. One such example is the Miranda V. Arizona, 384 U.S 436 (1966), where the Supreme Court ruled 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."

Contact a Proven Criminal Defense Team

Birdsall Obear & Associates LLC unites the best and most experienced Wisconsin criminal attorneys to defend the accused's rights fiercely. We have offices in Milwaukee, WI and Sheboygan, WI. To learn more or schedule a consultation, contact us or call us at 414-831-5465.

Milwaukee Office
1219 North Cass Street, Milwaukee, WI 53202

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Sheboygan Office
603 South 8th Street, Sheboygan, WI 53081

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