San Diego Criminal Defense Attorney Explains the Fifth Amendment Right to Remain Silent

When the US Constitution was proposed, delegates refused to sign until it was amended to include what we call the Bill of Rights.  The first ten amendments to the Constitution are the conditions upon which sovereign people relinquished power to the government.  Among these very important rights, is the right to remain silent, or the right against self-incrimination.  The Fifth Amendment to the US Constitution reads as follows:

"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."

There are many, many rights bundled together in this short paragraph.  The right to a grand jury indictment, double jeopardy, due process for rights and interests, and of course, the right not to be compelled to be a witness against oneself.  This one line has come to dominate the general understanding of the Fifth Amendment.  When someone says "I plead the 'Fifth,'" it will virtually always be in reference to this particular line.  Our right to remain silent extends to ANY interaction with law enforcement.  If a police officer asks a citizen a question, the citizen is not under any obligation to answer.  Your right to remain silent exists at all times, and whether you are engaged in a mere encounter with a police officer, an investigatory detention, an arrest or interrogation after arrest.  Police are trained to make subjects feel as though they must comply with what the officer asks.  Know your rights and assert them as needed.

Remaining silent during a traffic stop, DUI checkpoint, domestic disturbance, phone call from a detective, letter from a DMV investigator, etc., could prove to be the difference between criminal charges getting filed or not filed or at least avoiding making a government case stronger.  Confessions and other admissions are strong evidence for the government; do not give it to them.  Even seemingly exculpatory statements might be disproven (showing consciousness of guilt) or lock you in to a particular defense strategy.  It is almost always best not to make any statements to law enforcement, especially without consulting an attorney first.

In the landmark case Miranda v. Arizona, the US Supreme Court held that people subject to custodial interrogation must be advised of their right to remain silent, and their right to have an attorney present.  We have all heard the "you have the right to remain silent..." spiel, whether in person or on TV.  Unfortunately, many people do not ever really consider what that means.  Many people, even after hearing the Miranda warning will make incriminating statements to police.  Police are well-trained in the art of eliciting confessions.  They use lies, scare tactics, intimidation and other psychological tools to get what they want.

If a police officer fails to read you your rights, any statements you make during custodial interrogation would be suppressed.  This means statements made after arrest, not simply during the investigative stage.  Additionally, spontaneous statements made after an arrest are not said to be the result of interrogation.  This means that the Miranda protections apply to a small range of statements.  Typically, officers do read arrestees their rights, and ultimately the best way to keep statements out of evidence is not to make them in the first place.  The defense has no burden of proof, and less evidence will likely make for a better defense.

Zip it.