INVOKING THE 5th AMENDMENT RIGHT TO SILENCE

The 5th Amendment right to silence has been in the news lately, with Lois Lerner of the IRS invoking that right before a congressional hearing panel.  Did she or did she not have that right to invoke the 5th? That’s the question now.

I agree with Congressman Trey Dowdy (R, South Carolina) that she did not have the right to invoke the 5th. Congressman Dowdy is a former Assistant US Attorney who apparently has lots of trial experience. His point is that once she made a statement professing her innocence she has waived, or given up, her 5th Amendment right to silence. In no court in the land can anyone testify to their innocence and then invoke the 5th to avoid being cross-examined. It’s the same when testifying in a congressional hearing.

Lerner was partially right when she said the 5th Amendment was created to protect the innocent. The 5th Amendment right to silence was mostly created to protect Americans from being forced by the police/government from testifying against themselves whether they are guilty or innocent. Our forefathers had a major problem with that while under English rule. Forced confessions have a habit of being unreliable. Unfortunately, we still have a problem with that today. But that is another post for another time.

Many times when I get a new client where a confession has been given I ask them if they were given their Miranda warnings and they say yes. I then ask why they confessed. The common answer has been If I don’t say something they’ll think I’m guilty. Well, news flash, now they’re certain you’re guilty.  I always tell them that it’s better that the police actually have to prove they’re guilty without their help. It also makes my job of defending them easier.

There’s one more reason I hear from new clients almost as often as the reason stated above. The client tells me that the police told them to just tell them what happened and they can go home. Well that didn’t work out, either. They’ve been arrested and charged largely based upon the confession.

My advice to everyone: Don’t talk to the police. Don’t even tell them you’re innocent. Just give them your name, address, birth date and social security number.  Everything else can, and will, be used against you in court.

 

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5 Comments on “INVOKING THE 5th AMENDMENT RIGHT TO SILENCE”


  1. George, I thought I had a firm grasp on the Miranda warnings, but I must admit I’m a bit confused about the aforementioned issue. The Miranda warnings specifically state that a person can waive his 5th Amendment right and voluntarily answer questions but has the right to stop the questioning at any time. It would seem to me me that a person who initially waives his 5th Amendment Right against self-incrimination and professes his innocence could, at any time, invoke the 5th. Given the statutory language of the Miranda warnings, it seems deceitful, if not illegal, to advise someone they can terminate the questioning at any time, and then after they profess their innocence, tell them they can’t.


    • Denny, old friend. Thanks for being the first to comment on my new blog. Now, as to Miranda, it’s purpose was to curtail the police from taking advantage of people who do not know their rights. As to a court, a defendant is advised of his 5th Amendment right to silence before he takes the stand. Once he takes the stand and is under oath, he cannot testify to his innocence and then invoke the 5th to avoid cross-examination. The difference is that in police custody he is being investigated. In court, the Defendant is on trial to determine guilt. It can be confusing, but you can keep it straight by the determination of whether it’s investigative or adjudicatory.


      • Hey George, Thank you for clarifying that for me. It makes perfect sense now. I didn’t even consider the different nature of the proceedings. I hope anybody interested in the intricacies of law or criminal procedures hits the “follow” button on your blog. I also found the DUI article very informative.. .


      • Denny, thanks for the reply. It took so long because I’m computer illiterate and I’m still learning. I’m old law…I still use a pen and yellow pad!!! Perhaps you’d like to be a guest blogger occasionally. You know, from the police point of view.

        George


      • Hi George, Apparently, you and I are both dinosaurs. I can only do the basics with computers,, such as send emails and shop on Amazon. The things my grandkids can do with computers, though, is amazing. I still have all my phone numbers on a Rolodex. Don’t throw away your yellow pad. When our jeering friends’ computers crash, you and I will still have our information, and we can laugh at them. I’d love to be an occasional guest blogger on your site. Perhaps you would like to be an occasional guest blogger on my site at dennisbanahan.com? I have an article on there now which may be of interest you. It’s called “And Justice for All.”


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