The Fifth Amendment is another source of right for an accused. It states that “…nor shall be compelled in a criminal case to be a witness against himself.” This provision is otherwise known as the right against self-incrimination clause. This right has its roots in common law and is based on humanitarian and practical consideration. Evidence obtained in violation of the right against self-incrimination is rejected for humanitarian grounds because it is intended to prevent the state from using its coercive powers to extract from the suspect testimony that may be used to convict him. It is also rejected for practical grounds because a person who is subjected to such compulsion is likely to perjure himself for his own protection.
As a rule, the privilege against self-incrimination may be invoked only when and as the incriminating question is asked while the witness is on the witness stand. However if the person asked to sit on the witness stand is the accused himself, it is well settled that he can refuse to take the witness stand (Lefkowitz v. Turley, 414 U.S. 70). This is necessary because when the accused in a criminal case is placed on the witness stand, the prosecution only have one purpose that is to secure the necessary evidence from the accused himself that can be used to incriminate him.
Nevertheless, the right against self-incrimination maybe waived directly by invoking it in court or indirectly by the failure to invoke this right as the evidence obtained in violation of the right against self-incrimination is being presented in court. The law however requires that the waiver must be clear and certain and one which is intelligently given. This means that the waiver of this right must have been made by the accused after he has been fully informed in a language that is known and understandable to him about the repercussion of his waiver.
The right against self incrimination can not be invoked when the accused is asked to submit himself to physical examination of his body to determine his involvement in an offense of which he is being charged. Thus, the accused can be forced to submit himself to fingerprinting or his blood samples can be taken for the purpose of determining his DNA. Neither does the protection extend to the records of foreign bank since they are not privileged under the Fifth Amendment.
This was held in the 1988 case of Doe v. United States, 487 US 201, where the Supreme Court held that the accused in a criminal investigation may be required to sign a consent form for the purpose of authorizing his bank to disclose any record of or accounts over which he had a right to withdraw. Thus, even if the written admission has been made by the accused, he may allege that the evidence was obtained in violation of his right against self-incrimination to relieve him of criminal liability.
A Criminal trial is not an exercise in futility for an accused. While majority of the accused in criminal cases may think otherwise, the US Constitution and existing laws and jurisprudence have provided the accused with sufficient weapons to equalize the battlefield. Plea bargaining is not the only remedy for the accused. Knowledge of the existing laws and the US Constitution reveals that the accused is entitled to certain presumption, such as the presumption of innocence, which works to his advantage. The accused is also given the opportunity to submit negative defenses before the court. Even if the accused admits to the crime charged, he may still present a number of affirmative defenses such as the defense of self-defense, defense of insanity and defense of entrapment.
Should these defenses be not enough the accused may refer to the Fourth Amendment and the Fifth Amendment if the evidence against him was obtained in violation of the provisions in the US Constitution. In addition to these laws, the jurisprudence is continuously evolving towards the accused. One of the recent pronouncements is the Miranda v. Arizona ruling which requires that police officers to observe certain requirements during custodial investigation. Compliance with these requirements is so strict that any confession obtained in violation of these requirements renders the evidence inadmissible in court.
It is up to the accused to utilize all these legal maneuvers given to him. As long as the accused will not fully avail of these laws, they will forever be denied their day in court.