Privilege Against Self-Incrimination

Constitutional text

• No person “shall be compelled in any criminal case to be a witness against himself.” Every citizen of the United States has a privilege against self-incrimination.

U.S. Const. amend. V

• No person, in any criminal prosecution, shall be compelled to testify against himself.

Ind. Const. art. 1, § 14

In general

• The privilege so protected is not absolute, however; it “must be balanced against the government's legitimate demands to compel citizens to testify so that, in order to effect justice, the truth surrounding the criminal incident may be discovered.”

In re S.H., 984 N.E.2d 630, 633 (Ind. 2013)

• Privilege against self-incrimination attaches to a witness in each case in which he is called to testify, and whether he may invoke it is determined without reference to what was said in the witness' earlier testimony.

See In re Contempt Findings Against Shultz, 428 N.E.2d 1284 (Ind. Ct. App. 1981)

• In general, the prosecution is not permitted to introduce evidence of a defendant's exercise of his constitutional rights in order to impeach the defendant or invite the jury to infer the defendant's guilt from the exercise of those rights.

Peterson v. State, 699 N.E.2d 701, 705 (Ind. Ct. App. 1998)

• Fifth Amendment prohibition of compulsory self-incrimination not only permits a person to refuse to testify against himself at a criminal trial but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future proceedings.

Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014)

• For questioning at a proceeding to have the potential for self-incrimination, for the purpose of determining whether a witness has a Fifth Amendment privilege against compulsory self-incrimination, there must be reasonable cause to apprehend dander from a direct answer.

Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014)

Scope of the privilege

• Both state and federal constitutional privileges against compelled self-incrimination apply in pretrial settings, including grand jury questioning and police interrogation.

See Ajabu v. State, 693 N.E.2d 92, 931-32 (Ind. 1998)

• [W]hen a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. A defendant has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.

Kansas v. Cheever, 134 S. Ct. 596, 601 (2013) (quotation marks omitted)

• A trial court is authorized to determine whether an answer to a question proposed to a witness will incriminate the witness. However, in determining whether the answer might have that effect, the court is bound by the statement of the witness “unless it clearly appears from the examination and the circumstances before the court that the witness is mistaken in his conclusion that the answer will incriminate him, or that the witness' refusal is purely contumacious.”

In re Kefalidis, 714 N.E.2d 243, 245 (Ind. Ct. App. 1999)

Witness immunity based on privilege

• If the court determines that a witness, based upon his privilege against self-incrimination, may properly refuse to answer a question or produce an item, the prosecuting attorney may make a written request that the court grant use immunity to the witness.

IC 35-37-3-2

• Upon the request of the prosecuting attorney, the court may grant use immunity to the witness. The witness will be instructed that any evidence or any other evidence derived from the witness’s testimony may not be used in any criminal prosecution against the witness (except for perjury or contempt of court). The witness will then be required to answer questions asked and/or to produce items requested by the attorney.

IC 35-37-3-3

• A grant of immunity to a witness instructing that “any evidence the witness gives, or evidence derived from that evidence, may not be used in a criminal proceeding against the witness, unless the evidence is volunteered by the witness or is not responsive to a question by the prosecuting attorney” granted both use immunity and derivative use immunity, which was sufficient to compel witness' testimony over claim of Fifth Amendment privilege against self-incrimination.

See Wilson v. State, 988 N.E.2d 1211 (Ind. Ct. App. 2013)

Advice of rights/Miranda warnings

• Pursuant to both of these [federal and state] constitutional provisions protecting the right against self-incrimination, the police must advise a defendant of his right not to incriminate himself when the defendant is subject to a custodial interrogation.

Meriwether v. State, 984 N.E.2d 1259, 1263 (Ind. Ct. App. 2013)

• For more information about Miranda Warnings, please review Miranda Warnings.

Intoxication and voluntary statements

• Intoxication and lack of sleep may be factors in determining voluntariness.

Ringo v. State, 736 N.E.2d 1209, 1213 (Ind. 2000)

• The Supreme Court will deem a defendant's confession incompetent due to voluntary intoxication only when the intoxication renders the defendant not conscious of what he or she is doing, or produces a state of mania. Intoxication to a lesser degree only goes to the weight to be given to the confession, not its admissibility.

See Luckhart v. State, 736 N.E.2d 227 (Ind. 2000)

See also Carter v. State, 730 N.E.2d 155 (Ind. 2000)

• A murder defendant's confession was voluntary, despite the defendant's claim that he was intoxicated when the statement was made, where a videotape of the defendant's statement showed that the defendant talked, gestured and reacted to questions at a normal pace, the defendant appeared calm but alert, and was responsive to inquiries, the defendant spoke distinctly and seemed oriented to his surroundings, he told his story in a logical sequence, and he demonstrated physical coordination as he sipped soda, smoked several cigarettes, and initialed his handwritten statement at various places upon request.

See Owens v. State, 754 N.E.2d 927 (Ind. 2001)


• A codefendant's refusal to testify in a defendant's drug trial, upon invocation of his Fifth Amendment privilege against self-incrimination, did not violate the defendant's constitutional rights, where the codefendant faced criminal charges in connection with the same drug offense, and there was no evidence that the prosecution forced the codefendant to invoke the privilege.

See Newell v. Hanks, 335 F.3d 629, 632-33 (7th Cir. 2003)

Comments by Prosecutor

• In determining whether a Doyle violation in using a defendant's post-arrest silence is harmless, a reviewing court considers (1) the use to which the prosecution puts the post-arrest silence, (2) who elected to pursue the line of questioning, (3) the quantum of other evidence indicative of guilt, (4) the intensity and frequency of the reference, and (5) the availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

See Rowe v. State, 717 N.E.2d 1262 (Ind. Ct. App. 1999)

• The prosecutor's comment, during closing argument in a drug prosecution, that evidence that the defendant's confession was voluntary was uncontradicted, did not infringe upon the defendant's Fifth Amendment right not to testify and did not require the defendant be granted a mistrial.

See Livermore v. State, 777 N.E.2d 1154, 1160 (Ind. Ct. App. 2002)

• The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from the defendant's silence.

Hancock v. State, 737 N.E.2d 791, 798 (Ind. Ct. App. 2000)

• The state court determination that the prosecutor's comments during closing argument, when prosecutor inferred that the petitioner should have testified as to why he confessed to the crime that he later claimed he did not commit, were a harmless violation of the Fifth Amendment privilege against compulsory self-incrimination was an unreasonable application of clearly established federal law, requiring habeas relief, where the circumstantial case against the defendant was not overwhelming and the prosecutor’s comments played a significant role in securing a guilty verdict.

See Ben-Yisrayl v. Davis, 431 F.3d 1043 (7th Cir. 2005)


• The physician-patient privilege attached to the counselor's assessment of the defendant during court-ordered treatment for a Children in Need of Services (CHINS) action. The defendant in all probability believed that communications would be kept in confidence, compliance with court order dictated that the defendant disclose potentially incriminating evidence, and it was probable that noncompliance would have resulted in the court finding the defendant in contempt of court.

See Watson v. State, 784 N.E.2d 515 (Ind. Ct. App. 2003)

• For more information about the Doctor-Patient Privilege, please review Doctor/Patient Privilege.


• The accused chose to avail himself of the privilege of testifying in his own behalf, and therefore assumed the position of a witness, and became subject to all the rules which govern the cross-examination of witnesses.

Sears v. State, 282 N.E.2d 807 (Ind. 1972)

• In the case at bar, admissions of having been previously convicted called for by the prosecutor's questions, in substantive content, support the fact of prior convictions as alleged in the habitual offender account. If the privilege against self-incrimination does not bar the impeachment use of such incriminating prior inconsistent statements, it would not bar the impeachment use of these prior convictions. The use of prior convictions on cross-examination for impeachment would be consistent with the privilege

Denton v. State, 455 N.E.2d 905, 908 (Ind. 1983)

Physical evidence

• The Fifth Amendment privilege against self-incrimination does not apply to the taking of blood samples.

See Sauerheber v. State, 698 N.E.2d 796, 802 (Ind. 1998)

• [W]e conclude the defendant's privilege against self-incrimination was not violated when, at trial, he was compelled to don the corduroy coat worn by the perpetrator. By his action, he communicated no information; rather, he merely constituted physical evidence by which the eyewitness could compare his appearance with that of the perpetrator.

Bivins v. State, 433 N.E.2d 387, 390 (Ind. 1982)

• The record does show he was ordered to stand and bare his arm [which was tattooed]. We see no distinction between this situation and the one presented in Springer v. State, 372 N.E.2d 466 (Ind. Ct. App. 1978), where the defendant was required to stand and display his hands to the jury. In Springer we found no self-incrimination occurred; similarly we find none here.

Flynn v. State, 412 N.E.2d 284 (Ind. Ct. App. 1980)