Invoking Fifth Amendment Rights Involves Speaking After All

Prior to an arrest, the arrestee is read their Miranda rights which state they have the right to remain silent; however invoking their Fifth Amendment Rights prior to an arrest may actually involve speaking after all.

Cooperate without self-incrimination

Photo by: Cristian V.

When an individual is facing legal trouble, it is common for that person to either:

• Cooperate and communicate fully with law enforcement, often offering more information than they should, or
• Clam up, refusing to say a word because they have the “right to remain silent”, right?

Unfortunately, there is a fine line that persons facing arrest must tread between cooperating with police and protecting their Fifth Amendment Rights against self-incrimination. Although everyone has the right to remain silent, that doesn’t always mean it’s the best choice to be a stone wall. Complete silence could be seen as insubordination or even guilt. So when should a person remain silent and how can they do so without causing rifts with law enforcement?

Miranda Warning

The Miranda Warning is given to everyone prior to arrest and acknowledges the arrestee’s right to remain silent and to obtain counsel before being questioned. Once the Miranda Warning is read, it is wise to keep quiet until legal counsel is there to assist in the interrogation. What about the sometimes lengthy time before being arrested? What if an individual isn’t actually being arrested, just questioned?

Questioning or interrogation

If an individual is facing questioning from law enforcement without an attorney present and they feel wary about answering any questions, they can politely ask police if they are being arrested or if they are free to go. If they are not being arrested, then they have no legal obligation to stay and answer questions from officers on scene. If officers state that they are being arrested or detained, that is when the individuals should have the Miranda Warning read to them. If the questions persist without a warning given, the arrestee should then invoke their right to remain silent, by verbally informing officers they:

• Are invoking their Fifth Amendment Rights (or Miranda Rights);
• Wish to remain silent; or
• Would like their attorney present.

According to the United States Supreme Court in Davis v. United States, “If the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present.” Once a person has invoked their Fifth Amendment Right to remain silent, they are encouraged to contact a reputable criminal defense attorney to be present in all future interrogations.

The Right to Remain Silent – Understanding the Miranda Warning

The Miranda Warning is given to suspects prior to questioning and understanding this right to remain silent is critical to prevent self-incrimination.

“Book ’em Danno”

Photo by: houstondwiPhotos mp

Photo by: houstondwiPhotos mp

The Miranda Warning is heard by thousands of people every day while enjoying their favorite police or detective show on television. During many series’, popular catch phrases are offered following the highly anticipated arrest of a suspect. One such phrase is: “you have the right to remain silent.” Unfortunately, large majorities of the public hear this repeated on a regular basis yet fail to understand it is a warning of their constitutional right to remain silent.

Miranda v. Arizona

The Miranda Warning became the norm following four major cases, one being Miranda v. Arizona, in which suspects were interrogated at length, and as a result offered full admissions to their crimes. Each of the suspects was not made aware before or during their interrogation that they had a legal right to stay silent. The Supreme Court determined that Fifth Amendment rights had been violated, and reversed the ruling on three of the four cases.

1966 Supreme Court Ruling

Photo by: Matt Wade

Photo by: Matt Wade

The Supreme Court stated: “The prosecution may not use statements ( . . . ) stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Also that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would otherwise do so freely.” Thus followed the Miranda warning in which a defendant “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

Constitutional right to remain silent

Right to Remain Silent

Photo by: Craig Sunter

The right to remain silent spoken of in the Miranda Warning is derived from the Fifth Amendment which stipulates: “[no person] shall be compelled in any criminal case to be a witness against himself”. Therefore, no one has to answer questions which would aide in a criminal case brought against them. Thus if the suspect, whether guilty or innocent, fear they may say something to incriminate themselves, they are allowed by law to not respond to questions asked by authorities. If they do offer information to police openly or during questioning after the Miranda Warning is given, that information and any evidence resulting from it is admissible in court.

Delayed or lack of Miranda Warning

The Miranda Warning is typically given shortly after the handcuffs are placed on a suspect, yet legally can happen any time before the interrogation begins. Interrogation doesn’t always transpire in a cement room with a two way mirror; interrogation can be any questioning done by authorities after an arrest is made. If information is obtained through questioning prior to Miranda Warning, said information, and any evidence obtained because of it has the possibility of being thrown out.

Invoke rights and call an attorney

Photo by: Martin Cathrae

Photo by: Martin Cathrae

While everyone is allowed their Fifth Amendment rights, it is important to let authorities know those rights are being invoked, and that the suspect is not merely playing the silent game. Silence without invoking Fifth Amendment rights may be seen as evidence of guilt. Additionally, once someone has announced they are using their right to stay silent, they should immediately retain legal counsel, another right declared in the Miranda Warning. A reputable criminal defense attorney will aid their client in only offering non-implicating statements while ensuring that no constitutional rights are violated.