Everyone has heard “I plead the Fifth,” and you probably know that the Fifth Amendment protects you against self-incrimination. The specific language says “no person shall be compelled in any criminal case to be a witness against himself.”
The right to remain silent and to avoid self-incrimination is also enshrined in the Texas Constitution Bill of Rights.
In terms of protecting yourself against the grinding apparatus of the criminal legal system, it is one of the most important rights that you have.
Here’s what you need to know.
What is self-incrimination?
Self-incrimination is the intentional or unintentional act of providing law enforcement, prosecutors, judges, or others with information suggesting that you were involved in a crime.
You may invoke the right at any stage during the criminal legal process.
You do not have to wait until you take the stand. You can invoke the 5th any time police try to question you. You may invoke it after an arrest. You may invoke it while you are being detained.
A witness may invoke the 5th on the stand in the event that their answer would implicate them in any crime, not just the crime at issue in the middle of the trial.
Neither prosecutors nor judges may tell a jury that a defendant’s silence serves as an admission of guilt. This was enshrined in a 1965 Supreme Court Case, Griffin v. California.
You must invoke your rights.
Often, this is a right that you must exercise. Simply remaining silent may be used against you. In the 2013 Supreme Court Case Salinas v. Texas, the Supreme Court allowed prosecutors to use the fact that a defendant “clammed up” in the middle of a case as proof that he had a “consciousness of guilt” that could be used to convict him.
Do not start talking to the police and then abruptly stop. From the moment the police start asking you questions, your only answer should be: “I respectfully decline to answer without a lawyer present.” If you are under arrest, your answer is: “I invoke my right to remain silent and my right to an attorney.” You can also say, “I am invoking my Fifth Amendment rights and my right to an attorney” at any point in the process.
The wording can matter a great deal.
Are there other exceptions to self-incrimination protections?
Yes. The protection only protects individuals. Corporations and other business entities may not assert the privilege, though businesses that are sole proprietorships may. You also cannot invoke the right to remain silent when you’re being interviewed by IRS agents in a non-custodial settings.
Custodians of public records may not refuse to provide records even if the materials may incriminate the custodians themselves. And physical evidence is not protected under this amendment, including diaries or records that police seized at the time of arrest.
Finally, if you make an immunity agreement with the federal government, you can be compelled to testify.
Get Help Today
As with any legal matter, there are nuances and complicated scenarios that can touch 5th Amendment privileges that are impossible to cover and explain in a single blog post.
If you’re in trouble, get help. Contact one of our highly qualified defense attorneys as soon as possible. We can help you navigate the legal landscape, and will work to bring your criminal case to its best possible conclusion.
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