Plead the Fifth

You may have heard the term “Plead the Fifth” on one of the popular television shows, where the arrested person declines answering questions posed by law enforcement. But to understand the implications of your Fifth Amendment rights and protection, you must know what Miranda rights are, what it means to remain silent, and your rights when you are taken into custody. 

What is the Fifth Amendment?

The Fifth Amendment states that 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, the militia, or in actual service in time of war or public danger. No person should be subject to the same offense twice (double jeopardy) nor be compelled in any criminal case to be a witness against himself. No person should be deprived of life, liberty, or property without due process of law.  

The Fifth Amendment was established to protect citizens from incriminating themselves in a crime investigation and interrogation and outlines constitutional limits placed on police procedures. It can be broken out into five constitutional rights:

  1. The right to indictment by the grand jury before being charged with a felonious crime.
  2. The protection of double jeopardy, that prohibits a defendant from being charged and tried for the same crime more than once.
  3. The guarantee of a fair, impartial trial.
  4. The guarantee that the government cannot seize your private property without making a due and fair compensation at the property’s market value.
  5. The right against self-incrimination or the right to ‘plead the Fifth.’  

Initially, the rights provided under the Fifth Amendment only applied to cases within the federal courts. The U.S. Supreme court, however, has incorporated most of these provisions (the exception being the right to indictment by the Grand Jury) to the states through the Due process Clause of the Fourteenth Amendment.

What led to the Fifth Amendment?

The beginnings of the Fifth Amendment date back to the late 1700s when tension between the U.S. colonies and Great Britain led to the Revolutionary War. After the thirteen original colonies broke away from England, they developed the Articles of Confederation as a governing tool. As the country became larger and stronger, they developed a more centralized form of government and adopted the Constitution in 1788.  The Constitution spelled out the laws of the new country but did nothing to protect the rights of its people. Additions, or amendments, were added and ratified in 1791 and were known as the Bill of Rights.

When is it legal to remain silent?

The right to remain silent, or the Fifth Amendment, has been designed to protect a person during police questioning or trial proceedings. You have the right to “plead the Fifth” to not answer questions and to remain silent at all times. However, keep in mind that the police do not have to read you your rights(also known as Mirandizing) until they are taking you into custody. So if you choose to speak, do not feel you are protected just because the police did not read your rights. It is always a good idea to contact an attorney as soon as you know that the police want to speak with you, even if you are not being arrested. Your attorney knows how to best protect you and what kind of statements can incriminate you.  

Miranda rights were named for a case decided by the US Supreme Court in 1966. This ruling came as a result of the arrest and conviction of Ernest Miranda, who was unaware of his constitutional rights against self-incrimination and legal counsel. The Miranda ruling, also initiated the warning by police, not only that you have the right to remain silent, but also defines your right to an attorney.

Included in your right to remain silent, you are able to stop answering questions at any time, as provided by the 5th amendment. You also have the right to speak with an attorney before and during questioning and your attorney can be present during questioning. If you start to answer questions and decide you need to work with an attorney, you can stop the interrogation at any time and request an attorney.

What does it mean to invoke your Fifth Amendment rights?

If you have submitted to questioning and do not respond to your interrogator, it is possible that your lack of response can be commented on in court.  If you are neither in custody nor if you remain silent without stating clearly that you are invoking your Fifth Amendment rights, your lack of response could be considered an admission of guilt. To prevent this, you must explicitly invoke your right to remain silent. At that time, all police questioning must stop.  Questioning by different officers, at different times, is unlawful once you have invoked your Fifth Amendment rights.

Not only does the Fifth Amendment protect you against self-incrimination, but it also gives you the right to legal counsel. Even if you have not been arrested yet, and the police say they just want to “get your side of the story,” speak with an attorney before submitting to any questioning.   If you have been arrested, contact an experienced criminal defense lawyer as soon as possible.

Call Stephen Bowling Right Away!

If you need help navigating police questioning, contact Stephen T Bowling. We are here to guide you through this process successfully. Give us a call today or complete our online form to see how we can assist you with getting the best outcome available.

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816 Congress Ave, Suite 950
Austin, Texas 78701

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