Should You Plead the Fifth Amendment?

Unless you are a civics nerd whose top three college choices are all in Washington, D.C., or a naturalized U.S. citizen whose citizenship interview was so recent that you still remember the civics questions you studied, you probably do not know how many amendments the United States Constitution has. Only a few of them get any significant amount of media coverage. People talk about the First Amendment in the context of censorship and controversial speech and the Second Amendment in the context of gun violence and laws about the ownership of weapons, but several of the amendments in the Bill of Rights, which encompasses the first ten amendments, relate to the rights of people accused of crimes, since most of the state’s powers to infringe on the rights of individuals occur in the context of preventing or responding to crimes that endanger the public. Defendants in criminal cases are in a liminal position where they are in danger of having some basic rights taken away, but only if the state can prove that the defendant is guilty. The United States Constitution and its amendments, like some other law codes that originated around the same time, hold that it is the state’s responsibility to prove the defendant’s guilt, not the defendant’s responsibility to prove his or her innocence. The Fifth Amendment states that the state cannot compel an individual to testify against himself or herself. In practice, this means that people, including defendants in criminal cases, have the right not to respond to questions from authorities when answering truthfully would incriminate the speaker. Here, our Miami criminal defense lawyer explains how the Fifth Amendment applies in criminal trials and investigations, among other situations.

Invoke the Fifth Amendment Early in a Criminal Case

You have probably seen sound bites on the news of public figures saying, “I plead the Fifth Amendment.” They are not defendants on trial in criminal court. If you have been charged with a crime, the time to invoke the Fifth Amendment is at the beginning. If you are on the witness stand at your own trial, it is too late to have recourse to the Fifth Amendment.

Defendants in criminal cases should know this, according to the United States Supreme Court in Miranda v. Arizona. That is why police must recite the Miranda warnings when they arrest someone. One of those warnings is that you have the right to remain silent. If an officer questions you after that, say that you are exercising your right to remain silent. When you meet with a criminal defense lawyer, your lawyer can advise you whether to follow the Fifth Amendment route and remain silent throughout your case. If you do this and you go to trial, neither the prosecution nor the defense can call you to testify.

For defendants in criminal cases, the Fifth Amendment is all or nothing. If you choose to answer questions, do so in the presence of your lawyer. Get your lawyer’s consent before answering each question. Your lawyer can object to individual questions that are unfair before you answer.

People Who Are Not on Trial in Criminal Court Can Plead the Fifth in Response to Individual Questions

The Fifth Amendment may be an all or nothing decision for defendants in criminal cases, but everyone else can pick and choose when to answer and when to plead the Fifth. Witnesses at someone else’s trial, as well as defendants and witnesses in civil cases, can plead the Fifth Amendment in response to individual questions. They have the right to plead the Fifth in response to any question where they reasonably fear that answering truthfully would lead to them being charged with or convicted of a crime. In situations like these, pleading the Fifth Amendment is the fairest option, because if they lied, they would be committing perjury.

The Fifth Amendment Does Not Mean Acquittal in the Court of Public Opinion

Even though pleading the Fifth Amendment can help you avoid criminal prosecution, it can also make people suspect that you are guilty. If a witness pleads the Fifth Amendment, the state might investigate his or her activities more closely, eventually discovering enough evidence to press charges. This is one of the reasons that the state often offers plea deals that vastly reduce the charges, or even complete immunity from prosecution, if they want a witness to speak freely. In other words, they let the witness say things that incriminate himself or herself, with little or no reprisal, so that the witness can provide information that also incriminates other people.

Contact Our Criminal Defense Attorneys

A South Florida criminal defense lawyer can help you if you are considering exercising your right to remain silent throughout your criminal case.  Contact Ratzan & Faccidomo in Miami, Florida for a confidential consultation about your case.

Source:

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