The Fifth Amendment of the Constitution establishes the privilege against self- incrimination. This prevents the government from forcing a person to testify against himself. Although the founders were particularly concerned about persons being tortured into incriminating themselves, the courts have extended the privilege to any forced testimony. The result of the privilege against self- incrimination is that the state must prove its case without the help of the defendant. If the defendant stands silent, he wins unless the state can produce sufficient evidence of his guilt. At trial, the defendant can refuse to take the stand and testify, and the prosecutor may not comment on the defendant’s silence; that is, no remarks about why the defendant will not take the stand and explain what really happened.

The privilege against self-incrimination also applies to the investigation of a case. A defendant can refuse to talk to the police, but cannot refuse to appear before the grand jury. The defendant can refuse to answer questions that he believes will incriminate him, which is called “taking the Fifth.” The privilege applies to any crime, state or federal, so the defendant can take the Fifth when he is being investigated by the state because he is concerned about implicating himself for a federal crime. Witnesses, however, who are not defendants or potential defendants, cannot refuse to testify, and may even be imprisoned for contempt of court if they refuse. In some circumstances the prosecution can get around the defendant’s privilege against self- incrimination by offering the defendant immunity for the crimes he might mention in testifying. Once immunized against the possibility of prosecution, the witness can no longer refuse to testify by invoking the privilege against self- incrimination.

The privilege against self-incrimination is limited to testimony. Defendants can be forced to give hair samples, blood samples, and other bodily fluids. They can be forced to produce writing samples, and in some cases to give over information such as combinations to safes or the location of bank accounts. These are governed by the rules on searchs and seizures, rather than those governing self-incrimination.