Do You Know How to Exercise Your 5th Amendment Rights?
While most of the cases Scott Russell Law handles here in the Monticello area are traffic cases, this office tackles quite a few criminal cases as well. We handle everything from bad checks to the types of felony crimes that receive constant attention on crime shows across the nation.
Those same crime shows may have you convinced that the guilty always go to jail and the innocent always go free. In fact, nothing could be further from the truth. Police officers tend to make cases rather than “solving them” the way they do on television.
This means any misstep can weaken your case to a dangerous degree. Failing to know your rights, understand your rights, and exercise those rights are some of the most common missteps that people make.
What is the 5th Amendment?
While you’ve heard of people “pleading the 5th” you might not have a full understanding of what the 5th Amendment is and does.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy or life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”
As you can see, this amendment covers both your right to avoid testifying against yourself, and the “double jeopardy” rule which prevents you from being tried for the same crime twice.
Exercising Your Rights
The Fifth Amendment privilege is not “self-executing.” That is, unless you are “in custody” and are either being interrogated by the police or are being put on the stand you cannot simply assume the privilege is in place.
At any other time, you must claim the privilege. You can do that by saying, “I prefer not to answer,” or “I invoke my 5th Amendment Rights.”
What is another time where it might be necessary? Consider the 1984 Supreme Court case Minnesota v. Murphy, which addressed this issue of invoking rights.
Murphy was on probation for a sex-crimes charge. The terms of his probation demanded that he report to a treatment program where he was required to be truthful in all matters as a condition of his probation. During one of these sessions, he admitted to a 1974 rape and murder.
The officer reported the rape and murder and Murphy went to trial.
Minnesota courts found that he was not in custody and did not uphold his rights. The Supreme Court upheld the lower court’s decision, stating: “(a) The general obligation to appear before his probation officer and answer questions truthfully did not, in itself, convert respondent’s otherwise voluntary statements into compelled ones…; (b) A witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the Fifth Amendment privilege, rather answer if he desires not to incriminate himself. If he chooses to answer rather than to assert the privilege, his choice is not considered to be voluntary, since he was free to claim the privilege and would suffer no penalty as a result of his decision to do so.”
Note that you aren’t necessarily protected if you choose to lie or remain silent too. Lying to federal agents is even a crime in and of itself, and silence that seems incriminating can be used against you in a court of law if you were not in custody or on the stand at the time.
You should assert your 5th Amendment rights even when you are in custody.
In general, it’s better for you to assert these rights even if you should, technically, be covered by them. Going into custody is stressful, and explicitly evoking your rights helps avoid mistakes.
Just say, “I invoke my right to remain silent,” if you feel uncomfortable “pleading the 5th,” and “I will not speak without an attorney present.” Any attempts at interrogating you should come to a close. You should do this whether you are guilty or innocent, as police officers can use your answers to build a case against you even if your hands are clean.
Do you have a lawyer to call? If not, consider reaching out to Scott Russell law. If you’ve been charged with a crime we’re prepared to offer a tough, thorough defense.