Chapter 7
Compulsory Self-Incrimination
Objectives
Thi
citizens to furnish self-incriminating evidence. The Fifth Amendment is concerned with
testimonial self-incrimination (i.e., compulsion to disclos s). Its application
during custodial interrogations was discussed in Chapter 6. This chapter provides a more
complete analysis of the Fifth Amendment. The second limitation stems from the Fourth
1. The constitutional principles that regulate compulsory production of self-incriminating
testimony and physical evidence;
2. The range of proceedings in which protection of the Fifth Amendment privilege against self–
incrimination may be invoked, and how it is invoked and waived;
6. Fourth Amendment requirements for highly intrusive bodily searches (i.e., searches that
penetrate the surface of the body, result in extraction of bodily tissues or fluids, or involve
significant pain, physical discomfort, or humiliation), including when search warrants are
required and when they are excused by exigent circumstances; and
Discussion Outline
§7.1 Introduction
A. Self-incriminating evidence is divided into two categories testimony and physical evidence.
1. Testimony encompasses any behavior that explicitly or implicitly makes a statement or
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2. Physical evid
the source of two different kinds of physical evidence appearance evidence (i.e.,
§7.2 Fifth Amendment Protection against Testimonial Self-Incrimination
A. The Fifth Amendment privilege against self-incrimination is violated whenever the
government compels disclosure of information that could later be used against the person in a
B. There are two degrees of Fifth Amendment protection:
1. Citizens enjoy an absolute right to remain silent during custodial interrogations and at
their criminal trial.
2. In all other situations, citizens may be compelled to appear and testify, but are privileged
to refuse to answer specific questions if the answer might tend to incriminate them.
a. Illustration. A and B are arrested on charges of operating a drug trafficking ring and
§7.3 Prerequisites for Application of the Fifth Amendment
Three prerequisites are necessary to trigger protection of the Fifth Amendment privilege against
self-incrimination: (1) testimony (2) compulsion, and (3) self-incrimination.
A. Testimony. Testimony, for purposes of the Fifth Amendment, includes any behavior that,
explicitly or implicitly, discloses something a person knows.
1. Schmerber v. California and Pennsylvania v. Muniz, which appear in Part II, elaborate
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B. Compulsion. Compulsion occurs when the government threatens serious consequences
unless a person makes a statement or furnishes information. The threatened consequences
may take the form of contempt sanctions for disobeying a subpoena, physical harm, job loss,
etc.
1. The relevant time for evaluating whether compulsion has occurred is when an
incriminating statement is made originally. The Fifth Amendment does not protect
2. United States v. Hubbell (Part II). Even though voluntarily prepared incriminatory
writings lack Fifth Amendment protection, the act of producing them in response to a
C. Self-Incrimination. To be self-incriminating, the statement must expose the maker to risk of
criminal prosecution.
1. People under arrest may be compelled to furnish biographical information (i.e., name,
2. People who have already been tried for the crime to which the questions relate may not
3. People who have been granted immunity from prosecution may not invoke the
protection of the Fifth Amendment. Two different kinds of immunity are available.
Absolute immunity exempts the witness from prosecution for crimes revealed during
compelled testimony. Use (including derivative use) immunity bars the government
D. Class discussion questions. Indicate whether the Fifth Amendment privilege against self–
incrimination is violated by any of the following procedures and explain why or why not.
a.
statements contained in it as evidence against him or her. (§7.3(B)) No
b. Using a subpoena duces tecum to compel the target of a grand jury investigation to
produce his or her personal diary. (§7.3(B)) No
§7.4 Rules for Invoking and Waiving Fifth Amendment Protection
A. Invoking the Fifth Amendment
1. Criminal defendants have a Fifth Amendment right to remain silent at their criminal
2. Witnesses other than criminal defendants do not have the right to remain silent. They
B. Waiving the privilege
1. A waiver occurs when a person who has a Fifth Amendment privilege voluntarily
2. Criminal defendants who take the witness stand waive the privilege, but only concerning
§7.5 Protection against Adverse Consequences from Exercising the Privilege against Self–
Incrimination
A.
§7.6 Self-Reporting Laws and the Fifth Amendment
A. The Fifth Amendment does not privilege a person to refuse to file a required report that could
draw attention to his or her criminal activity when the reporting requirement furthers a
legitimate regulatory purpose.
1. The Internal Revenue Code, occupational tax laws, and hit-and-run motorist statutes are
§7.7 Fourth Amendment Protection against Bodily Self-Incrimination
A. The Fifth Amendment only protects suspects against the compulsion to disclose information.
It does not protect them against bodily self-incrimination.
1. Schmerber v. California (Part II). Schmerber has enormous importance both in Fourth
and Fifth Amendment analysis. For clarity of presentation, we recommend discussing
2. Pennsylvania v. Muniz (Part II). Pennsylvania v. Muniz was selected to drive home the
point that Miranda warnings are not required before compelling production of self–
incriminating physical evidence. Because the Miranda rule was based on the Fifth
Amendment, warnings are required only when police conduct a custodial interrogation.
They are not required before compelling suspects to provide fingerprint, handwriting,
3. Class discussion question. George was arrested and taken to the police station, where he
was subjected to a field sobriety test in which he was required to raise one foot
approximately six inches off the ground and, while in this position and looking at his
foot, to count backwards from 40 to 1. George made numerous mistakes, supporting the
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B. Compelled production of self-incriminating physical evidence is regulated by the Fourth
Amendment. The Fourth Amendment protects three discrete interests people have in their
C. appearance
evidence and bodily evidence.
2.
§7.8 Requirements for Appearance Evidence
A. The most common police procedures involving appearance evidence are: (1) station house
B.
procedures, compulsory production of appearance evidence is permitted whenever the police
have constitutional grounds to seize the suspect and detain him or her long enough to
perform the procedure.
1. A lawful arrest carries authority to compel participation in all appearance evidence
C. Some jurisdictions have statutes authorizing the prosecutor to apply to a court for an order
compelling suspects to appear on their own and participate in nontestimonial identification
§7.9 Requirements for Bodily Evidence
A.
B. The following procedures involve bodily evidence: (1) removing incriminating residue from
C. Unlike appearance evidence, which involves no intrusion beyond an interference with the
bodily privacy, resulting in a Fourth Amendment search, or involve removal of body tissues,
fluids, or other materials, resulting in a Fourth Amendment seizure. Accordingly, the search
and seizure principles discussed in Chapter 4 apply to procedures that involve bodily
evidence.
1. Schmerber v. California (Part II). In Schmerber, the Supreme Court established the
contemporary framework for evaluating when highly intrusive bodily searches satisfy
Fourth Amendment standards of reasonableness. Schmerber was arrested for drunk
driving and taken to the hospital, where a blood sample was drawn, without his consent.
2. Surgical intrusions to recover evidence. Of all bodily evidence procedures, surgical
need for the evidence m
§ 7.10 Necessity of a Search Warrant to Explore for Bodily Evidence
A. Unless confronted with an emergency that threatens destruction of evidence, police should
obtain a search warrant before arranging for procedures that involve: (1) taking saliva, urine,
B. Exigent circumstances exception. The exigent circumstances exception excuses the need for
a search warrant before searching for bodily evidence when police have probable cause to
believe that incriminating evidence is present and that the evidence will be destroyed if they
delay action to obtain a search warrant. Court have applied this exception to:
1. Extracting blood to run tests for alcohol intoxication. Because the blood-alcohol content
deteriorates rapidly, warrants are not required before drawing blood to test for
2. Swabbing for residue. Because residue left on the skin after the commission of a crime
can also deteriorate rapidly, no warrant is required. Police may perform this procedure
3. Retrieving swallowed evidence. When police have probable cause to believe that a
suspect is attempting to swallow evidence, they may use reasonable force to prevent him
or her from swallowing it. This includes reaching into the mouth to grab the evidence,
but courts are split as to whether a choke hold may be used. If the suspect succeeds in
§ 7.11 Strip Searches and Body Cavity Searches
A. The te
1. Investigatory strip search. Performance of an investigatory strip search incident to arrest
requires a lawful arrest coupled with particularized reasonable suspicion to believe that
2. Jail security strip searches. Whether jail intake strip searches require individualized
3. Manual body cavity search. Searches that involve touching or probing of anal or genital
Review Questions
1. Which amendment is concerned with compulsion to provide self-incriminating testimony?
What does that amendment provide? (§7.1)
5. In what legal contexts do citizens enjoy the right to remain silent? The privilege not to
answer incriminating questions? (§7.2)
6. What three requirements are necessary to trigger protection of the Fifth Amendment
privilege against self-incrimination? (§7.3)
7.
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______ b. Using a subpoena duces tecum to compel the target of a grand jury
investigation to produce self-incriminating books and records. (§7.3(B))
______ c. Requiring a person under arrest to answer booking questions. (§7.3(C))
______ d. Requiring a person under arrest to appear in a lineup. (§§7.3(A), 7.7, 7.8)
11. Indicate whether Sam enjoys the right to remain silent, the privilege not to answer the
specific question asked, or neither privilege in each of the following situations. (§§7.2, 7.3)
a. Sam is arrested for driving under the influence of alcohol, taken to the police station,
and asked questions about his name, address, Social Security number, date of birth,
height, and weight for purposes of booking.
12. There are several situations in which a witness can be compelled to provide testimony that
concerns his or her own criminal activity. What are they? (§7.3(C))
13. What is the difference between absolute immunity and use (including derivative use)
immunity? (§7.3(C))
17. When, i
criminal trial? (§7.5)
18. Does the Fifth Amendment exempt citizens engaged in criminal activity from filing
mandatory government reports that could call attention to their criminal activity? Explain.
(§7.6)
19.
Schmerber v. California (Part II)).
20. George was arrested and taken to the police station where he was given a field sobriety test
during which he was required to raise one foot approximately six inches off the ground and,
21. Must Miranda warnings be administered before compelling a suspect to submit to the
following procedures? Explain why or why not.
22. The Fourth Amendment protects three distinct interests that citizens have in their bodies.
Identify them. (§7.7)
23. What is appearance evidence? What is bodily evidence? Which of the three interests
24. Classify the following procedures in terms of whether they involve appearance evidence or
bodily evidence:
a. Photographing?
b. Participation in a lineup?
25. What does the Fourth Amendment require before suspects may be compelled to furnish
appearance evidence? (§7.8)
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28. Under what circumstances may bodily evidence be taken from a suspect without a search
warrant? (§7.10)
29. What is a strip search? What is a manual body cavity search? What justification does the
Examination Questions (*indicates correct answer)
(§7.2)
1. Criminal defendants enjoy
2.
3. The Fifth Amendment privilege against self-incrimination does not protect:
4. The Fifth Amendment prevents the prosecutor from:
(§7.3)
5. Persons under arrest are not protected by the Fifth Amendment from being required to:
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6. Use (including derivative use) immunity:
7. The Fifth Amendment privilege against self-incrimination is not violated by:
(§§7.1, 7.7, 7.8, 7.9, 7,10, 7.11)
8. Which of the following lists includes only appearance evidence?
9. Miranda warnings must be administered to suspects who have been taken into custody
before:
10. During a lawful Terry stop, police may:
11. A search warrant should be obtained before requiring a suspect to undergo all but which of
the following procedures?
12. Investigatory strip searches:
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13. Which of the following statements best describes the application of the Fifth Amendment
privilege against self incrimination in civil trials?
Multiple Choice Questions (*indicates correct answer)
1. The following group of amendments governs compulsory self-incrimination:
2. All of the following are required to invoke Fifth Amendment protection except for:
3. The following compels testimony:
4. The most common way in which claims of Fifth Amendment privilege are overridden is
through:
5. The following are types of appearance evidence except for:
6. Citizens may ignore self-reporting statutes that do the following:
7. The following decision established the modern framework for evaluating the constitutionality
of compelled production of bodily evidence:
8. The following are on the list of factors that must be considered to establish the reasonableness
of a bodily search except for:
9. Courts have applied the exigent circumstances exception to the following situations involving
bodily intrusive searches except for:
10. A search warrant should be obtained before the following searches except for:
True/False Questions (*indicates correct answer)
1. from bodily self-incrimination stems from the Fifth Amendment.
2. In order to require a suspect to participate in a station house lineup before criminal prosecution
has commenced, police do not need further grounds than those required for arrest.
3. If a defendant invokes the Fifth Amendment during a criminal trial and is found guilty, this
may be considered at the sentencing phase.
4. Miranda warnings are not required for field sobriety tests.
5. Strip searches may be performed on everyone booked in a detention facility.
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6. Suspects have the right to remain silent during custodial interrogations under the Fourteenth
Amendment.
7. Information that exposes the maker to a risk of criminal prosecution is known as compulsion.
8. Absolute immunity does not bar the government from prosecuting a witness for crimes
revealed through compelled testimony.
9. Criminal defendants who take the witness stand waive the privilege against self-incrimination.
10. Exigent circumstances allow the police to conduct a warrantless search to preserve evidence
when they have grounds for a search and probable cause to believe that the evidence will be
destroyed if they delay action to obtain a warrant.