The right against self-incrimination

This right is spelled out in the Fifth Amendment to the United States Constitution (and in the constitutions of all states except Iowa and New Jersey): "No person ... shall be compelled in any criminal case to be a witness against himself... .'' The privilege may be exercised in several ways. In a criminal trial, its use is simple enough: the accused simply refuses to take the stand or to testify in his own defense, and the trial judge must instruct the jury not to draw unfavorable conclusions from this silence.

The privilege against self-incrimination represented a revolt against hundreds of years of legal procedure in which accused persons were examined under oath not only to obtain evidence, but to get confessions as well. Today the privilege can be claimed by a witness summoned to appear before and testify in a congressional investigation or an investigation conducted by a state legislative committee.

It is true that in recent years, there have been notorious abuses of the privilege against self-incrimination, but the right is an important one, and society is prepared to uphold it even though it is sometimes misused. The privilege is personal only, and cannot be claimed to protect others. Nor can it be claimed by a corporation or an institution; it can be invoked only by a natural person. Moreover, the person claiming the privilege must have some reason for doing so: he must have a plausible reason to fear that the answer he gives to a question may, in fact, result in his being charged with the commission of a crime. If you were summoned to appear before a state legislative committee investigating the need of traffic lights at important intersections, and you were asked how many times you had failed to obey a stop sign at a major intersection near your home, you could not properly decline to answer on the ground that you might be incriminated, that is, subject to criminal prosecution.

There are times when a person fears of being incriminated by his own statements, but it is meaningless because he has been guaranteed immunity from prosecution. Such guarantees are frequently made by public prosecutors or district attorneys in criminal proceedings if they want to start with grand jury indictments. If the guarantee of immunity is broad, he has nothing to lose by testifying. If, having received such a guarantee of immunity, he still refuses to testify, he may be found guilty of contempt of court, fined, and even sent to jail.

What a crime is

A crime or offense (the two terms are used interchangeably) is an act or omission defined and made punishable by law. To this very simple definition two points should be added: crime is not a crime if committed by someone who is legally incompetent. And a crime is not a crime unless, at the time it was committed, a law was in effect saying the offense was a crime. If the speed limit in your state has been seventy miles an hour but by statute is lowered to sixty, effective at some future date, you may until that date legally travel at seventy. No criminal law is constitutional which is ex post facto, that is, which says something is illegal that was legal when it was done.

The distinction between a crime and a tort is that a crime is regarded as an injury to society, whereas a tort is regarded as an injury to individuals only. The state brings the alleged criminal into court; the state protects the public by setting criminal procedures in motion. The criminal action in court is designated The State (or The People) v. John Doe. But if you as an individual have been wronged, in a way that may or may not involve a violation of a criminal law or statute, you must bring the legal action yourself, in a civil court. The action is designated Jane Smith v. John Doe.

Of course, an act may be both a crime and a tort. A motorist who drives so fast down a street that he loses control of his car, which runs up on the sidewalk and smashes into your store, would doubtless be prosecuted for one or more criminal offenses. But you would have your own right of action against him for the damages to your property.

If he's insured, you may or may not need to sue him to redress the wrong he did to your property. In theory, however, the public prosecutor has no choice but to have the driver arrested and charged with the commission of a crime, if only that of reckless driving.