Self-incrimination

Self-incrimination is the act of exposing oneself generally, by making a statement, "to an

accusation or charge of crime; to involve oneself or another [person] in a criminal prosecution or
the danger thereof."[1] Self-incrimination can occur either directly or indirectly: directly, by means
of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when
information of a self-incriminatory nature is disclosed voluntarily without pressure from another
person.[2]
In many legal systems, accused criminals cannot be compelled to incriminate themselves—they
may choose to speak to police or other authorities, but they cannot be punished for refusing to do
so. There are 108 countries and jurisdictions that currently have Miranda-type warnings, which
include the right to remain silent and the right to legal counsel.[3] These laws are not uniform
across the world, however members of the European Union have developed their laws around
the EU's guide regarding Miranda-type law.[4]

Canadian law[edit]
In Canada, similar rights exist pursuant to the Charter of Rights and Freedoms. Section 11 of the
Charter provides that one cannot be compelled to be a witness in a proceeding against
oneself. Section 11(c) states:
11. Any person charged with an offence has the right ... c) not to be compelled to be a witness in
proceedings against that person in respect of the offence ...
An important caveat in Canadian law is that this does not apply to a person who is not charged in
the case in question.[5] A person issued a subpoena, who is not charged in respect of the offence
being considered, must give testimony. However, this testimony cannot later be used against the
person in another case. Section 13 of the Charter states:
13. A witness who testifies in any proceedings has the right not to have any incriminating
evidence so given used to incriminate that witness in any other proceedings, except in a
prosecution for perjury or for the giving of contradictory evidence.
Historically, in Canadian common law, witnesses could refuse to give testimony that would self-
incriminate. However, section 5(1) of the Canada Evidence Act eliminated that absolute common
law privilege by instead compelling witnesses to testify. In exchange, section 5(2) of the same act
granted the witnesses immunity from having that evidence used against them in the future except
in the case of perjury or impeachment. While these provisions of the Canada Evidence Act are
still operational, they have been overtaken in their application by the immunities granted by
sections 13 and 7 of the Canadian Charter of Rights and Freedoms.[6]

Chinese law[edit]
See also: Human rights in China
After the 1996 amendments to the Criminal Procedure Law, Article 15 states that "It shall be
strictly prohibited to extort confessions by torture, gather evidence by threat, enticement, deceit,
or other illegal means, or force anyone to commit self-incrimination."[7] In 2012 the law was also
re-amended to strengthen the human rights protection of criminal suspects.[8]China has since
recognized the right against self-incrimination and forced confessions are prohibited by the law.
However in practice as human rights violations in China continue to be committed, it is still
common practice for police to use torture on suspects to obtain forced confessions.[9] China's
accession to the United Nations's International Covenant on Civil and Political Rights in 1998
also guarantees Chinese citizens the right against self-incrimination; however, China has not
ratified the treaty.[10]

Indian law[edit]
See also: Judiciary of India
In India, under Article 20 (3) of the Constitution, the defendant has the right against self-
incrimination, but witnesses are not given the same right.[11]
A defendant must be informed of their rights before making any statements that may incriminate
them. Defendants must not be compelled to give any statements. In the case that a defendant is
pressured into giving a statement that is self-incriminating, the statement will not be admissible in
a court of law.[12] The Code of Criminal Procedure and the Indian Constitution give defendants the
Right to Silence, i.e. the right to withhold self-incriminating information to authorities. The
defendant must inform the authorities that he or she is exercising their Right to Silence;
withholding information is not considered using their right to withhold information that can
potentially be self-incriminating.[12] In order to exercise their right to remain silent, the defendant
must verbally and clearly state that they are doing so. For example, a defendant can say, "I am
exercising my right to remain silent and will not be answering any further questions."[12] Article 20
(3) does not pertain to those who made a confession willingly without being intimidated or
coerced into making such statement.[13]

English and Welsh law[edit]

See also: Right to silence in England and Wales
The right against self-incrimination originated in England and Wales.[14] In countries deriving their
laws as an extension of the history of English Common Law, a body of law has grown around the
concept of providing individuals with the means to protect themselves from self-incrimination.
Applying to England and Wales, the Criminal Justice and Public Order Act 1994 amended
the right to silence by allowing inferences to be drawn by the jury in cases where a suspect
refuses to explain something, and then later produces an explanation. In other words, the jury is
entitled to infer that the accused fabricated the explanation at a later date, as he or she refused
to provide the explanation during the time of the police questioning. The jury is also free not to
make such an inference.[15]

Scots law[edit]
In Scots criminal and civil law, both common and statute law originated and operate separately
from that in England and Wales.[16] In Scots law, the right to silence remains unchanged by the
above, and juries' rights to draw inferences are severely curtailed.
On January 25, 2018 the law in Scotland changed in regards to people being detained by police.
These changes only affect people who are arrested after January 25, 2018. Those who are
arrested have 'the right to remain silent' and are not obligated to answer questions asked by
police. However, although someone being detained by police does not need to answer questions
regarding the crime they are accused of, it is mandatory for detainees to answer basic questions
of identity such as: name, date of birth, address, and nationality.[17]

United States law[edit]

The Fifth Amendment to the United States Constitution protects the accused from being forced to
incriminate themselves in a crime. The Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime ... nor shall be
compelled in any criminal case to be a witness against himself ...[18]
Additionally, under the Miranda ruling, a person also has the right to remain silent while in police
custody so as to not reveal any incriminating information.[19][better source needed] In order to invoke this
constitutional right to remain silent, a person must explicitly and unambiguously tell officers that
they are exercising this right to remain silent.[12] Therefore, staying silent without a prior
exclamation that you are exercising this constitutional right does not invoke the right.[12]
In Miranda v. Arizona (1966) the United States Supreme Court ruled that the Fifth Amendment
privilege against self-incrimination requires law enforcement officials to advise a
suspect interrogated in custody of them their right to remain silent and their right to an
attorney.[20][21] Justice Robert H. Jackson further notes that "any lawyer worth his salt will tell the
suspect in no uncertain terms to make no statement to police under any circumstances".[22]
Miranda warnings must be given before there is any "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".[23] Suspects must be warned, prior to the interrogation, that they have the
right to remain silent, that anything they say may be used against them in a court of law, that they
have the right to have an attorney and if one cannot afford an attorney, one will be appointed to
defend such person. Further, only after such warnings are given and understood, may the
individual knowingly waive them and agree to answer questions or make a statement.[24]
It is also important to note that the Fifth Amendment protects certain types of evidence,
specifically testimonial evidence, which are statements that are spoken by the person in question
that are made under oath.[25] For a list of other different types of evidence, see Evidence (law).
Legal definitions and privileges[edit]

 Black's Law Dictionary (US):

SELF-INCRIMINATION: Acts or declarations either as testimony at trial or prior to trial by
which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as
provisions in many state constitutions and laws, prohibit the government from requiring a
person to be a witness against himself involuntarily or to furnish evidence against himself.[1]

 Barron's Law Dictionary (US):

SELF-INCRIMINATION, PRIVILEGE AGAINST the constitutional right of a person to refuse
to answer questions or otherwise give testimony against himself or herself which will subject
him or her to an incrimination. This right under the Fifth Amendment (often called simply
PLEADING THE FIFTH) is now applicable to the states through the due process clause of
the Fourteenth Amendment, 378 U.S. 1,8, and is applicable in any situation, civil or criminal
where the state attempts to compel incriminating testimony.[26]

Truthful statements by an innocent person[edit]

An incriminating statement includes any statement that tends to increase the danger that the
person making the statement will be accused, charged or prosecuted – even if the statement is
true, and even if the person is innocent of any crime. Thus, even a person who is innocent of any
crime who testifies truthfully can be incriminated by that testimony. The United States Supreme
Court has stated that the Fifth Amendment privilege
protects the innocent as well as the guilty. ... one of the Fifth Amendment's basic functions ... is
to protect innocent men ... who otherwise might be ensnared by ambiguous circumstances. ...
truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the
government with incriminating evidence from the speaker's own mouth.[27]
The U.S. Supreme Court has also stated:
Too many, even those who should be better advised, view this privilege as a shelter for
wrongdoers. They too readily assume that those who invoke it are either guilty of crime or
commit perjury in claiming the privilege

What is protection against self -incrimination

under article 20(3) of the constitution of India?
10 Answers

Utkarsh Srivastva, lives in India

Updated Apr 28, 2016 · Author has 97 answers and 59.6k answer views
 Originally Answered: What is the meaning of statement "No person accused of any offense shall be
compelled to be a witness against himself ", in Article 20 (3) of the Constitution of India? Specifically,
what does the part 'witness against himself ' mean?
It means the following three things:
1. The accused is presumed to be innocent.
2. It is for the prosecution to establish his guilt.
3. The accused need not make any statement against his will.

Well suppose that you have committed some act or have been part of some act which is
against the law then the police or the court cannot force you to tell your part in the act.
You cannot be forced to give evidence about youtself. Even if police in its custody thrash
the shit out of you and you confess to your guilt in front of them you can still plead in
front of the judge that police used torture to get such and such testimony from you. Thus
that will render the testimony so obtained inadmissible and this is probably one of the
reasons why evidence from narco tests are inadmissible because you are forced to
incriminate yourself by giving evidence against your will. This also means that this is
right is available during the stages of investigation as well as trial. And this right is
available only to the defendants and not to witnesses.

You can be punished only for those offence which are offence at the time of committing
the offence. e.g: A guy steals today and stealing is not an offence today but tomorrow the
legislature enacts a law that stealing is an offence. So you can't be booked for it. You see
the thing is that criminal laws can never be given retrospective effect. The same applies
for duration of punishment. If at the time of committing offence it's a month and later on
it was increased to 2 months , you can get booked only for a month.
1.4k Views · View 1 Upvoter

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Related QuestionsMore Answers Below

 In which case was article 20 of the Constitution of India used?

 What are some famous examples of self-incrimination? and Why is it prohibited in Article
20(3)?
 Is self incrimination valid in Indian courts?
 Does narco-analysis on a convict violate Article 20(3)?
 Does the burden to prove one's innocence on oneself, for charges of contempt of court,
goes against the right under Article 20(3) of the Const...
Ask New Question
Satyam Choudhary, Learning about India every day
Answered May 12, 2016 · Author has 74 answers and 433.4k answer views
Art 20(3): "No person accused of any offence shall be compelled to be a witness against
himself."

This immunity extends only to criminal proceedings as only criminal proceedings can
"harm your body".

The idea behind the immunity is to check the tyranny unleashed by law enforcement
agencies. Because of this even if a voluntary admission of crime is made in front of a
police officer it is not admissible as a proof in a court of law; the only admissible self
incriminating proof is if it is made in front of a judicial magistrate. From this provision
one can clearly see the idea behind the clause.

A person can't even be forced to furnish any document that may lead to his prosecution.
But seizure of any document is allowed through searches. (Remember the golden rule
regarding " harm to the body ")

Also in order to avail the immunity under this clause, a person must be formally accused.
One can't avail immunity on the ground that furnishing of some proof may lead to his
prosecution in future.
2.4k Views · View 6 Upvoters · Answer requested by Aakansha Jain

Sipoy Satish, worked at Company Secretaries

Answered May 6, 2016 · Author has 72 answers and 193.6k answer views
Protection in respect of conviction for offences:

Protection against self-incrimination: Self-incrimination means - is the act of exposing

oneself "to an accusation or charge of crime;

Example: if am accused in any Murder, then no one should compel me to accept the
murder which was not done by me

(you can watch in movies, where police officers compels accused persons to accept wrong
cases)

But it is to be noted that a person is entitled to this protection, only when all the three
conditions are fulfilled:

1. that he must be accused of an offence;

2. that there must be a compulsion to be a witness; and

3. such compulsion should result in his giving evidence against himself.

Hope you understand !!

1k Views · View 7 Upvoters · Answer requested by Saloi Khai

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Anushka Vohra, Student

Answered Jan 25, 2018
Self incrimination is the act of exposing oneself, especially in cases where one is accused
under a criminal offence.

Article 20(3) of the Constitution of India provides protection against self incrimination.
This article states that where a person has been accused under a criminal offense, he
shall not be compelled to vouch against himself. As per The IPC, ‘The accused in
innocent until proved guilty’and the onus of proving the accused guilty lies on the
public prosecutor. And that the accused shall have immunity against self incrimination.

Hope this proves helpful.

Thank you!

620 Views · View 1 Upvoter

Balasubramaniam Kanthaswamy, former Chief Manager at Central Bank of India (1980-2017)

Answered Mar 9, 2018 · Author has 2.6k answers and 1.3m answer views
Originally Answered: What is the meaning of statement "No person accused of any offense shall be
compelled to be a witness against himself ", in Article 20 (3) of the Constitution of India? Specifically,
what does the part 'witness against himself ' mean?
Every statement made in a Court of Law is expected to be free from perjury or lies.
However a accused statement under Section 313 is free of this expectation. The Judge
does not penalize an accused who lied under Sec 313 in his court under oath even if the
accuseds statement turns out to be a lie. This is the section 20(3). This means that in a
Court of Law - an accused can refuse to give a statement under 313 Crpc or even if the
accused gives a statement - he can lie with impunity and without punishment.

Likewise a confession by the accused to the police is utterly inadmissible as any evidence
including for bail hearings. This is another application of the 20(3).

259 Views · View 1 Upvoter

Prakash M. Bapat, B E Mechanical Engineering & Mathematical Optimization, Nagpur,
Maharashtra, India (1977)
Answered May 17, 2018 · Author has 1.7k answers and 539.1k answer views
Enough information has been given about the protection against self incrimination in
constitution in other answers.

Just adding some interesting information no accused can be forced to stand in the
witness box and depose against himself.

 Even wife or husband also enjoy this protection against their spouses. It is also
there in other countries. If you have been reading Perry Mason stories you
would have come across this in those books.
 Buut in India the in 2G case the main accused volunteered to be a witness (this
is allowed) and he was cross examined by CBI lawyers for many days and
finally he was acquitted.
 He has written a book about this whole case and the CAG created scam of 1.76
lk crs. Which proved to be no scam of the proportion that it was blown
out to be.
 In India we have so many laws but justice or fairness is a rare thing.
Shriram.

409 Views · View 2 Upvoters

Sourav Biswas, Civil Service Aspirant (2017-present)

Answered Nov 14, 2017
Originally Answered: What is the meaning of statement "No person accused of any offense shall be
compelled to be a witness against himself ", in Article 20 (3) of the Constitution of India? Specifically,
what does the part 'witness against himself ' mean?
It simply means that no person shall be forced to speak against him/her in the court of
law.This provision is created in the Constitution to safeguard the interest of the
convict.However,any proof such as videos or letters or anything made by the convict
which is recovered from his/her possession is accepted in the court of law as proof but
he/she cannot be forced to speak against him/her or forcefully pleaded guilty.

For example if Mr.X has done a murder,he cannot be forced by anyone to say, “yes,i have
done the murder.”

And this is the beauty of our Constitution.Even the guilty is treated with equality and
justice.

392 Views · View 3 Upvoters

Tina Marshall, American attorney

Answered Nov 20, 2015 · Author has 2.3k answers and 3m answer views
Originally Answered: What is the meaning of statement "No person accused of any offense shall be
compelled to be a witness against himself ", in Article 20 (3) of the Constitution of India? Specifically,
what does the part 'witness against himself ' mean?
Not only am I not an expert in Indian law, I know pretty much nothing about it, but I can
tell you what it means in the US.

In the US, a defendant can never be forced to testify in a criminal case against them. This
is know as the Right Against Self-Incrimination and it is derived from the Fifth
Amendment of the US Constitution. If a defendant does decide to take the stand to
testify, they may always "plead the 5th" to avoid answering a question that would
incriminate them in the case at hand or be used against them in another one (this applies
regardless of actual guilt or innocence). This right against self-incrimination also
expands to a custodial interrogation with law enforcement. In Miranda v. Arizona,
384 U.S. 436 (1966), the U.S. Supreme court held that law enforcement must inform
suspects that anything they say may be used against them in a court of law.

Since both the US and Indian law is largely derived from English common law, this could
mean that Indian law has a very similar view.
1.2k Views · View 1 Upvoter · Answer requested by Ramkripal Yadav

Shantanu Singh, LL.M from Faculty of Law, University of Delhi

Answered Aug 7, 2018 · Author has 52 answers and 26.3k answer views
Originally Answered: What is the meaning of statement "No person accused of any offense shall be
compelled to be a witness against himself ", in Article 20 (3) of the Constitution of India? Specifically,
what does the part 'witness against himself ' mean?
Right against self-incrimination is a right inherent in a person, be it a witness to the case
or even accused himself. This right provides that a person has a right to keep silent and
not answer the questions asked by police during the course of investigation when such
questions are supposed to expose that person to a criminal charge or penalty or
forfeiture thereof. However he has no right to remain silent when such questions do not
pose such threat of prosecution and therefore need to answer truly (as per s. 161 Crpc) to
all the questions, as he is legally bound and refusal to answer to such questions can
initiate prosecution under ss. 202 and 203 IPC. Therefore he cannot hide under the garb
of self-incrimination to every question asked by the police.

Said s.161 is supposed to be a parliamentary gloss over this constitutional right as

observed in the case of Nandani Satpathy v PL Dani where apex court at length
discussed the scope and extent of Art 20(3) of Indian Constitution.

Also compelled testimony under the said article shall always be presumed as a result of
fear psychosis, threat, inducement, allurement by police which is abhorrent of a fair trial
as the deposition by accused is automatically presumed to be involuntary and under
duress by legal fiction so as to save the accused which is a fundamental feature of the
adversarial system of trial. For the same reason even confessions to police are
inadmissible and only relevant as admission under s21 of evidence act and conduct
under s. 8 of the same act.

Therefore “Witness against himself” directly relates to self incrimination and any fact
under the conscious mind of accsued or any fact dependant on the personal knowledge
of the accused will be inadmissible in a court of law. As a consequence of which even
narco tests, BEAP tests etc are inadmissible provided they are given voluntary.
However medical examination of accused like taking blood samples,semen by serologist,
his fingerprints and DNA are not facts under his personal knowledge and for the efficient
administration of criminal justice and for the needs of an orderly society with minimal
crime such taking of samples are held as constitutional by the apex court and here
accsued cannot invoke self incrimination. Even medical examination of an internal organ
or taking x-rays are held as legally sustainable orders.