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Self-Incrimination Rights and the Trainwreck of Testimonial Evidence

A judge's gavel about to hit a block, representing how one can benefit from calling a Portland criminal defense lawyer.

The Fifth Amendment covers a lot of ground, guaranteeing you a lot of different rights. One of these is your right to be free from compelled self-incrimination. However, this right is a complex one, with lots of nuances and exceptions to it. One of the strangest complexities in your self-incrimination rights is that it only covers “testimony,” creating a minefield of confusion.

Self-Incrimination Clause and Testimonial Evidence

The self-incrimination clause prevents law enforcement from ever forcing you to provide evidence against yourself. There are a lot of different ways that this could happen. For example, police could put you on the stand in trial and ask you a question that makes you either admit to a crime, lie under oath and perjure yourself, or say nothing and risk contempt of court. The Fifth Amendment prevents law enforcement from doing this.

But what about compelling you to provide other kinds of evidence?

For example, imagine you’re being investigated for a crime. A witness at the crime scene saw that the culprit had a distinctive tattoo on their right bicep. Can police compel you to show your right bicep?

Unfortunately, the answer is yes: The Fifth Amendment’s self-incrimination clause doesn’t stop them from forcing you to show your bicep.

Testimonial Versus Physical Evidence

The lynchpin in whether the self-incrimination clause protects you is whether the evidence being compelled is “real or physical evidence,” on the one hand, or “testimonial evidence,” on the other. The Fifth Amendment’s self-incrimination clause only prevents law enforcement from compelling testimonial evidence, which is something that you communicate.

Of course, these categories are notoriously difficult to use. A tattoo on your arm can be compelled because it’s a piece of physical evidence. A spoken statement is protected by the Fifth and can’t be compelled because it’s testimonial. What about written documents? They’re both communicative and physical. According to the Supreme Court, they fall in the “testimonial evidence” category, putting them under the protection of the Fifth Amendment’s self-incrimination clause. Usually.

But now imagine being in a lineup in the police station for a witness to see, and having the police tell you to say something the witness had heard during the crime. According to courts, this is non-testimonial, so you can’t invoke your Fifth Amendment rights when police compel you to talk.

Maine Criminal Defense Attorney William T. Bly

The self-incrimination clause is a huge aspect of defending yourself against a criminal charge. However, the complexities of your self-incrimination rights make things far more difficult than they have to be. The attempts to split evidence into testimonial evidence and physical evidence lead to significant problems that impact people’s lives, as we’ll show in our next blog post.

Having a solid criminal defense attorney on your side throughout the police investigation can be a huge help. If you’ve been charged with a crime in the state of Maine, contact criminal defense attorney William T. Bly online or at (207) 571-8146 to get the legal help you need.


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