“I am invoking my fifth amendment right to remain silent.” We have all seen suspects on police and legal procedurals assert these rights. And we all assume the same thing. The bad guy doesn’t want to incriminate himself.
From this, many people have jumped to the common but erroneous conclusion that anyone who asserts the Fifth Amendment right to remain silent must be a thoroughly bad egg likely to soon be spending a long, well-deserved stretch in prison.
The harsh reality is that as a veteran criminal defense lawyer, I firmly believe far more innocent persons have gotten into trouble by waiving their right to remain silent during a police interrogation than guilty parties have escaped the consequences of their actions by invoking that fundamental right. Here’s a brief summary of why I would advise anyone against giving up the right to remain silent when being questioned by police, and how (briefly, clearly and respectfully), when (always) and why (read on) you should assert that right.
- The Police Have a Job to Do, But That Doesn’t Make Them Your Friend.
In 1966, the U.S. Supreme Court in the landmark case of Miranda v. Arizona ruled that police must warn persons being interrogated by police of their constitutional rights, including the right to remain silent and be represented by counsel, and inform them that anything they say may be used against them in court. If you watch enough TV police dramas, you can probably recite some or all of the Miranda warning.
Even so, some people think that they can talk their way out of the police station, or think they can establish a rapport with the police, by talking freely. Police interrogators may encourage a suspect to keep talking to “help yourself out” or “help us find who’s really at fault.” Plenty of ordinary citizens fall for this, and manage to talk themselves into trouble, not out of it.
- What You Don’t Say Can’t Hurt You.
Suppose that while being questioned by police, you decide to spell out facts you think will show why it’s all just some kind of misunderstanding and why you shouldn’t be under suspicion. If you misremember, misstate, or exaggerate any facts, or shade the truth even in a minor detail, a prosecutor will no doubt try to seize on that part of your statement to cast doubt on the entire statement. Similarly, if you make a statement, prosecutors will search for any witness who, in good faith or otherwise, has another recollection or gives a different account.
There are even instances of people being questioned by police making what they must at the time have thought was a tension-relieving joke, only to discover that, far from finding it humorous, police and prosecutors view it as a damaging admission.
- Let Your Lawyer Do the Talking.
Unless you’re professionally trained to make statements in court, and have a thorough knowledge of the potential legal ramifications of every remark you make, it’s strongly advisable for you to politely say something like “I want to remain silent,” stick to that, and leave the talking to your lawyer. And, of course, make sure to tell the police you want to talk to a lawyer