The Privilege Against Self-Incrimination: California Evidence Code, California Constitution, and the United States Constitution

The privilege against self-incrimination is a cornerstone of the American legal system, enshrined in both the United States Constitution and various state constitutions, including California’s. In California, this privilege is statutorily codified in California Evidence Code sections 930-940, and it plays a crucial role in protecting the rights of individuals accused of crimes.

Before diving into the specifics of Evidence Code sections 930-940, it is essential to understand the broader context of the privilege against self-incrimination. The Fifth Amendment to the United States Constitution protects individuals from being compelled to incriminate themselves in all felony and misdemeanor cases. Similarly, Article I, Section 15 of the California Constitution reinforces this right at the state level. This dual protection ensures that both federal and California courts respect a defendant's right against self-incrimination.

Evidence Code sections 930-940 provide the statutory framework for the privilege against self-incrimination within the state’s legal system. These sections are designed to strike a balance between the prosecution’s need to present evidence and a defendant’s right to remain silent to avoid self-incrimination.

Section 930 outlines the basic principle of the privilege, stating that a person has a right not to be a witness against themselves in a criminal case. In practice, this means that a defendant cannot be compelled to testify or provide evidence that might incriminate them.

Section 931 reaffirms the privilege against self-incrimination by explaining that a defendant in a criminal case has the right to refuse to be a witness. This includes the right to refuse to testify or provide other evidence that could implicate them in a crime.

While the privilege against self-incrimination is a fundamental right, it can be voluntarily waived by a criminal defendant. In California, this waiver must be made explicitly and voluntarily. Some common ways in which a defendant may waive the privilege include:

Testifying in their own defense: A defendant can choose to take the witness stand and testify on their behalf. However, once they do so, they are subject to cross-examination by the prosecution. This decision effectively waives the privilege and opens the door for self-incrimination.

Providing a statement to law enforcement: A defendant may waive the privilege by voluntarily speaking to law enforcement without coercion or duress. Any statements made can be used against them in court, unless there is an issue involving their Miranda warnings.

Submitting to a search: If a defendant consents to a search of their property, any incriminating evidence discovered during the search can be admitted as evidence. The act of consenting to the search can be seen as a waiver of the privilege.

Entering a plea agreement: A defendant may choose to enter into a plea agreement with the prosecution, which often involves admitting guilt to certain charges in exchange for a more lenient sentence. This can is a waiver of the privilege against self-incrimination.

Defendants can assert their privilege against self-incrimination in various ways, either explicitly or through their actions.

Silence during questioning: If a defendant is being interrogated by law enforcement about a robbery, they have the right to remain silent and not answer any questions that could incriminate them.

Refusing to testify at trial: In a forgery criminal trial, a defendant may choose not to take the witness stand.

Invoking the right to an attorney: When a defendant requests an attorney while being detained for a DUI, they are claiming the privilege.

Objecting to specific questions: During cross-examination, a defendant or their attorney may object to questions that they believe could lead to self-incrimination.

The privilege against self-incrimination, as enshrined in Evidence Code Sections 930-940, is a fundamental right that plays a pivotal role in protecting the rights of criminal defendants. If you are facing charges for a crime, you have the right against self-incrimination, and it is absolutely critical that you discuss your case with an experienced criminal defense attorney. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has extensive experience in defending his clients’ rights against self-incrimination, including challenging illegal police interrogations and counseling a client about the decision to testify.

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.