The Fifth Amendment of the U.S. Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself."

A literal reading of this amendment indicates that the individual is protected only from being required to testify and not form unsworn statements obtained out of court by the police.

In 1897 the SC ruled that the prohibition against being a witness against him or herself also applies to out-of-court confessions and compelled admissions.

The court concluded that there was a historical connection between the privilege against forced self-incrimination and the law of confessions.

Four parts:

The compulsion to testify must be by the government.

The compulsion to testify is prohibited only if it forces a person to be a witness against him or herself.

Only available in criminal cases.

Only testimonial self-incrimination is covered

All four elements must be present to claim the privilege.

Evidence is not protected by the privilege unless the evidence is testimonial in nature—not physical evidence.

Courts can order defendants to produce fingerprints, voice exemplars, blood samples, etc.

SC held that the compulsion of voiceprints does not violate the 5^th since they were physical and not testimonial in nature

SC held that forced participation in a police lineup does not violate the privilege against self incrimination.

SC upheld the right to force a defendant to provide handwriting exemplars.

So long as the government’s compulsion is directed to the physical characteristics of communications, and not the actual content, then the 5^th Amendment does not apply.

As a general rule, the SC has held that documents are preexisting at the time a subpoena is issued, it is not a violation of the 5^th Amendment.

The SC held that the contents of existing documents are not protected by the 5^th Amendment since the preparation of those documents were not compelled by the government.

Does the act of producing documents communicate the fact that the documents exist and are under the control of the defendant?

If the existence of the documents is not obvious and is incriminating, the courts will be reluctant to require the defendant to produce them.

If the documents are required by law or governmental regulation to be kept for legitimate administrative purposes, the 5^th Amendment does not protect the contents nor the act of production of these documents.

The SC held that the "required records exception" applied to a California statute that required anyone involved in an accident to stop at the scene and leave his or her name and address.

Such records were essentially administrative in nature—expediting civil suits and insurance claims

The Fifth Amendment protection against self incrimination does not apply to business entities.

In Braswell v. US, the government issued a subpoena for Braswell, as a corporate officer, to provide certain records involving his solely owned corporation.

The production of the entity’s documents would be an act of the entity (corporation) and not a personal act.

The SC held that the collective entity rule does not apply to oral testimony and that the corporate agent could refuse to give oral testimony if that testimony would incriminate the agent.

While the privilege against self-incrimination applies only to criminal cases, it has a broader scope that the language implies.

Example: a person may not be compelled to make a statement in an administrative hearing or in a civil case if the information could ultimately be used against him or her in a criminal case.

The SC held that the 5^th Amendment privilege against self-incrimination protects individuals from answering any question in any proceedings if the answers might incriminate them in future criminal proceedings.

Failure to assert the privilege results in it being lost.

Example: answering a question rather than claiming the privilege could result in the loss of the privilege.

In addition, individuals may waive the privilege by giving testimony that is inconsistent with claiming the privilege—you cant retract testimony once made

Before a confession or admission of an accused may be entered into evidence, it must meet the test of Voluntariness, and then, if applicable, the requirements of Miranda.

The defendant was tied to a tree and beaten until he confessed to the crime.

Evidence also was presented that he was severely whipped while on the way to jail.

His confession was used to help convict him.

On appeal the SC held that convictions based on extorted confessions is a violation of the due process of law required by the Fourteenth Amendment and must be reversed.

Banned the use of confessions obtained by psychological coercion.

In determining if due process violations are present, the courts consider:

Held that the threat of violence was sufficient to render a confession involuntary.

Actual violence is not required, merely a credible threat

At least some police coercion is required to make a confession inadmissible.

In this case, the accused confessed because heard voices telling him to do so.

The court held that the due process clause (14^th) was not violated because there was no coercive government misconduct

Not all police tricks will invalidate a confession.

For example, falsely telling a defendant that his fingerprints were found at the scene does not invalidate the confession.

To determine that a confession is involuntary, the court uses the "totality of the circumstances" test

The factors deemed most important by the SC are physical abuse, threats, extensive questioning, incommunicado detention, denial of the right to counsel, and the characteristics of the suspect.

The test is imprecise and is decided on an case by case basis.

An Involuntary Confession may not be used by the government for any purpose.