Legal proceeding [edit]The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding.[40] The Supreme Court ruled that the privilege applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court,[41] and whether the proceeding itself is criminal or civil.[42]
The right to remain silent was asserted at grand jury or congressional hearings in the 1950s, when witnesses testifying before the House Committee on Un-American Activities or the Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the Communist Party. Under the Red Scare hysteria at the time of McCarthyism, witnesses who refused to answer the questions were accused as "fifth amendment communists". They lost jobs or positions in unions and other political organizations, and suffered other repercussions after "taking the fifth."
Senator Joseph McCarthy (R-Wisc.) asked, "Are you now, or have you ever been a member of the Communist party," while he was chairman of the Senate Government Operations Committee Permanent Subcommittee on Investigations. Admitting to a previous communist party membership was not sufficient. Witnesses were also required to "name names," to implicate others they knew to be communists or who had been communists in the past. Academy Award winning director Elia Kazan testified before the House Committee on Un-American Activities that he had belonged to the Communist Party briefly in his youth. He also "named names," which incurred enmity of many in Hollywood. Other entertainers such as Zero Mostel found themselves on a Hollywood blacklist after taking the fifth, and were unable to find work for a while in the show business.
The amendment has also been used by defendants and witnesses in criminal cases involving the Mafia.
The privilege against self-incrimination does not apply when an individual testifies before a self-regulatory organization (SRO); an SRO is not a court of law, and cannot send a person to jail. SROs, such as the National Association of Securities Dealers (NASD), are generally not considered as state actors subject to the restraints of the fifth amendment. See United States v. Solomon,[43] D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc.,[44] and Marchiano v. NASD,[45] SROs also lack subpoena powers, so they rely heavily on requiring testimony from individuals by wielding the threat of a bar from the industry (permanent, if decided by the NASD) when the individual asserts his or her Fifth Amendment privilege against self-incrimination.
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