The examples and perspective in this article deal primarily with common law and do not represent a worldwide view of the subject. (August 2013) (Learn how and when to remove this template message)
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Self-incrimination is the act of exposing oneself (generally, by making a statement) "to an accusation or charge of crime; to involve oneself or another [person] in a criminal prosecution or the danger thereof." Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
In many legal systems, accused criminals cannot be compelled to incriminate themselves—they may choose to speak to police or other authorities, but they cannot be punished for refusing to do so. The precise details of this right of the accused vary between different countries, 
In Canada, similar rights exist pursuant to the Charter of Rights and Freedoms. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c) states:
- 11. Any person charged with an offence has the right … c) not to be compelled to be a witness in proceedings against that person in respect of the offence…
An important distinction[dubious ] in Canadian law is that this does not apply to a person who is not charged in the case in question. A person issued subpoena, who is not charged in respect of the offence being considered, must give testimony. However, this testimony cannot later be used against the person in another case. Section 13 of the Charter states:
- 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
Historically, in Canadian common law, witnesses could refuse to give testimony that would self-incriminate. However, section 5(1) of the Canada Evidence Act eliminated that absolute common law privilege by instead compelling witnesses to testify. In exchange, section 5(2) of the same act granted the witnesses immunity from having that evidence used against them in the future except in the case of perjury or impeachment. While these provisions of the Canada Evidence Act are still operational, they have been overtaken in their application by the immunities granted by sections 13 and 7 of the Canadian Charter of Rights and Freedoms.
After the 1996 amendments to the Criminal Procedure Law, Article 15 states that "It shall be strictly prohibited to extort confessions by torture, gather evidence by threat, enticement, deceit, or other illegal means, or force anyone to commit self-incrimination." In 2012 the law was also re-amended to strengthen the human rights protection of criminal suspects. China has since recognized the right against self-incrimination and forced confessions are prohibited by the law. However in practice as human rights violations in China continues to exists, it is still common practice for police to torture on suspects to obtain forced confessions. China's signatory on United Nations's International Covenant on Civil and Political Rights in 1998, also guarantees Chinese citizens the right against self-incrimination, however the treaty has not been ratified in China.
In India, under Article 20 (3) of the Constitution, the defendant has the right against self-incrimination, but witnesses are not given the same right.
English and Welsh lawEdit
The right against self-incrimination originated in England and Wales. In countries deriving their laws as an extension of the history of English Common Law, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination.
Applying to England and Wales the Criminal Justice and Public Order Act 1994 amended the right to silence by allowing inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation (in other words, the jury is entitled to infer that the accused fabricated the explanation at a later date, as he or she refused to provide the explanation during the time of the police questioning). The jury is also free not to make such an inference.
In Scots criminal and civil law, both common and statute law originated and operate separately from that in England and Wales. In Scots law, the right to silence remains unchanged by the above, and juries' rights to draw inferences are severely curtailed.
United States lawEdit
The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself to "an accusation or charge of crime," or as involving oneself "in a criminal prosecution or the danger thereof." The privilege against self-incrimination is "[t]he privilege derived from the Fifth Amendment, U.S. Const., and similar provisions in the constitutions of states....[that] requires the government to prove a criminal case against the defendant without the aid of the defendant as a witness against himself...." To "plead the Fifth" is to refuse to answer a question because the response could form self-incriminating evidence. Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.
In Miranda v. Arizona (1966) the United States Supreme Court ruled that the Fifth Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect interrogated in custody of his rights to remain silent and to obtain an attorney. Justice Robert H. Jackson further notes that "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."
Miranda warnings must be given before there is any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Suspects must be warned, prior to the interrogation, that they have the right to remain silent, that anything they say may be used against them in a court of law, that they have the right to the presence of an attorney, and that, if an attorney cannot be afforded, one will be appointed. Further, only after such warnings are given and understood, may the individual knowingly waive them and agree to answer questions or make a statement.
Legal definitions and privilegesEdit
- Black's Law Dictionary (USA):
SELF-INCRIMINATION: Acts or declarations either as testimony at trial or prior to trial by which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as provisions in many state constitutions and laws, prohibit the government from requiring a person to be a witness against himself involuntarily or to furnish evidence against himself.
- Barron's Law Dictionary (USA):
SELF-INCRIMINATION, PRIVILEGE AGAINST the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself which will subject him or her to an incrimination. This right under the Fifth Amendment (often called simply PLEADING THE FIFTH) is now applicable to the states through the due process clause of the Fourteenth Amendment, 378 U.S. 1,8, and is applicable in any situation, civil or criminal where the state attempts to compel incriminating testimony.
--Barron's Law Dictionary, p. 434 (2d ed. 1984).
Truthful statements by an innocent personEdit
An incriminating statement includes any statement that tends to increase the danger that the person making the statement will be accused, charged or prosecuted – even if the statement is true, and even if the person is innocent of any crime. Thus, even a person who is innocent of any crime who testifies truthfully can be incriminated by that testimony. The United States Supreme Court has stated that the Fifth Amendment privilege:
- protects the innocent as well as the guilty.... one of the Fifth Amendment’s basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances..... truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.
The U.S. Supreme Court has also stated:
- Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.
- Black's Law Dictionary (5th ed.). 1979. p. 690.
- Stewart, Hamish; Berger, Benjamin L.; Murphy, Ronalda; Cunliffe, Emma; Steven, Steven, eds. (2016). Evidence: A Canadian Casebook. Toronto: Emond Montgomery Publications. p. 624. ISBN 978-1-55239-680-3.
- China: Amendment of Criminal Procedure Law.
- Report: Torture is routinely used in China to obtain confessions and silence human-rights lawyers.
- Cornell University Law School. "FIFTH AMENDMENT: AN OVERVIEW". cornell.edu.
- Black's Law Dictionary, p. 690 (5th ed. 1979).
- Black's Law Dictionary, p. 1078 (5th ed. 1979).
- North Carolina Wesleyan College (November 11, 2000). "SELF-INCRIMINATION: RIGHT OR PRIVILEGE?". ncwc.edu.
- Illinois Institute of Technology Chicago–Kent College of Law (July 22, 2013). "MIRANDA v. ARIZONA". oyez.org.
- Alex McBride (December 2006). "SUPREME COURT HISTORY EXPANDING CIVIL RIGHTS Miranda v. Arizona (1966)". pbs.org.
- Watts v. Indiana, 338 U.S. 49 (1949)
- Cornell University Law School. "Syllabus SUPREME COURT OF THE UNITED STATES 384 U.S. 436 Miranda v. Arizona CERTIORARI TO THE SUPREME COURT OF ARIZONA". cornell.edu.
- Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
- Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam).
- Ullmann v. United States, 350 U.S. 422, 426 (1956) (footnote omitted).