SELF-INCRIMINATION
“No person…shall be compelled in
any criminal case to be a witness
against himself[.]”
The 5th Amendment
“I plead the Fifth!”
Self-Incrimination Checklist:
 Self-Incrimination inside the courtroom
or
 Self-Incrimination outside of the courtroom
Self-Incrimination
INSIDE THE COURTROOM
1. No person (a witness or the accused)
2. Shall be compelled (cannot be forced to testify)
3. In any criminal case (applies to criminal
prosecutions or where could result in future criminal
charges)
4. To be a witness (applies to testimonial or
communicative evidence only)
5. Against himself (cannot assert someone else’s right
against self-incrimination)
Outside the Courtroom
Requirement #1:
CUSTODY
Was the suspect under arrest or its functional
equivalent? (Would a reasonable person in
the suspect’s position not feel free to leave?)
Self-Incrimination
OUTSIDE OF THE COURTROOM
Checklist:
Was the suspect in custody?
Was the suspect interrogated?
Did police inform the suspect of his Miranda
rights prior to interrogation?
Were any improperly obtained statements
suppressed at trial?
Outside the Courtroom
Requirement #2:
INTERROGATION
Did police directly question the suspect or
engage in some tactic that was designed to
elicit an incriminating response?
“By custodial interrogation, we mean 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.”
Miranda v. Arizona, 384 U.S. 436 (1966).
Outside the Courtroom
Requirement #3:
MIRANDA RIGHTS
“Prior to any questioning, the person must be
warned that he has a right to remain silent, that
any statement he does make may be used as
evidence against him, and that he has a right to
the presence of an attorney, either retained or
appointed.”
Miranda v. Arizona, 384 U.S. 436 (1966).
Outside the Courtroom
Requirement #3:
MIRANDA RIGHTS
Did police properly inform a suspect of Miranda rights?
If YES:
If NO:
• Did the suspect invoke his
right to remain silent
or
• Did the suspect voluntarily,
knowingly, and
intelligently waive his
rights?
• Did a public safety
exception temporarily excuse
police from giving Miranda
prior to interrogation
or
• Did police unintentionally
omit Miranda or give
incomplete or inaccurate
warnings?
Outside the Courtroom
Requirement #4:
REMEDY
Were any improperly obtained statements
suppressed from evidence by the
Exclusionary Rule?
• Was there a mere-Miranda violation
or
• Was the suspect’s statement involuntary based on due
process standards? Mincey v. Arizona, 437 U.S. 385 (1978).