How to Assert Your Constitutional Right to Not Self-Incriminate

Pleading the “Fifth”

Amendment V

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 of 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.

In the post 9/11 world rights that protected individuals from expanded government authority have been encroached upon, beaten and battered to the point where they are almost seem non-existent. However, they do still exist and you may still assert them. The Fifth Amendment, as you can see above, establishes a lot of protections for someone who has been accused of a crime. The intention at the time was to prevent force or coercion, but now also protects individuals who are impaired and unable to understand what they are consenting to.  You have the right to remain silent and not be a witness against yourself.  I’ve spoken briefly about this subject when discussing the iPhone case and encryption, but it’s also applicable to any questioning being performed by police—you are not bound to speak or deliver evidence such as passcodes, where you were, who you spoke to etc.  Moreover, as a criminal lawyer it is my job to advise people to maintain their right to silence and never speak with the police because it never helps and has the potential to severely hurt you in the long run.

While I realize that criminal attorneys are expensive and that the court won’t appoint one until you have been brought to your first hearing, but it is well worth it to have an attorney go with you should police call you in for any type of questioning. Here’s why:

1. Police are allowed to lie and trick you into a confession. Nothing will happen to them if they lie to gain your confession.
2. Police will lie to have you peacefully come down to the station. You may believe that you are coming for some other reason, but they are most likely calling you in to begin collecting evidence against you.
3. Police have no power to promise you anything. If they tell you that if you just say “x,y,z” they will go easy on you, once again, they’re lying. Only the District Attorney’s office can decide to charge or not charge you.
4. Police are looking to wrap cases up quickly. They need to place someone at the scene of a crime and know how to ask questions in order to get you to do that. You may accidentally put yourself at the scene of a crime when you weren’t even close to it because you’ve become nervous, or because they are asking questions quickly, or if your memory starts to play tricks with you.

Innocent people go to jail all the time.  Innocent people take pleas at incredibly high rates just to not go to jail.  Being innocent doesn’t mean you won’t go to jail. So talking with the police will not help you. In the real world you don’t get brownie points for being helpful.

Now, as we have quickly learned this year from watching the news, police don’t take kindly to people asserting their rights. You have them, but you should be careful at all times when asserting them.  If possible, have someone record you asserting them, or whenever possible get a criminal attorney with an extensive history in dealing with cases like yours to go with you when speaking with police.

Remember:

1. No one is ever under any obligation to speak with the police.
2. I never allow my client to ever talk with the police since 99% percent of the time, the police have focused on you and you are not going to talk your way out being their focus.
3. You never talk with the police for one very good reason.  Assume your worst nightmare and you go to trial.  The police gets up on the witness stand and says that he advised you of your Miranda Rights and you said A, B, C to the police.  The defendant subsequently takes the witness stand and testifies that when he spoke to the police, the defendant never said A, B, C.  Instead the defendant said 1, 2, 3.  All things being equal, who is the jury going to believe?  The cop every time, because if the juror ever gets into trouble, the juror is going to call the police, not the defendant, not the defense attorney, not the judge.  Therefore, under no circumstances, should anyone ever talk with the police even with an attorney.