Archive for June 2013

The Supreme Court Just Changed The Rules On The 5th Amendment

June 21, 2013

A recent case before the Supreme Court of the United States (SCOTUS) has just ruled that pre-Miranda silence can be used against a defendant in his trial, unless he specifically invokes his 5th Amendment right to silence. In other words, if you refuse to talk to the police without invoking your right to remain silent before the police give you Miranda warnings, your silence can be told to the jury. Up to this point, silence, even without invoking the 5th, could not be used against you. SCOTUS rejected the argument that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent to invoke his “right to remain silent.”

I said in an earlier post for everyone to just remain silent and not talk to police. Well, that’s out the window. You must affirmatively invoke your 5th Amendment right to remain silent. Be calm and polite. But be adamant. Do not allow the police to talk you out of it, which they’ll do. They’ll do it sneaky, and conversationally. But they’ll try. Fortunately, SCOTUS also ruled that any type of police coercion to overcome your will makes the statement involuntary, even without asserting your 5th Amendment rights.

SCOTUS makes the distinction between taking the stand at trial, and a police interrogation when it comes to asserting the 5th. “A defendant need not take the stand and assert the privilege at trial, but there is no comparable unqualified right not to speak during a police interview.”

The long and the short of it, boys and girls, is always assert your 5th Amendment right to remain silent when dealing with the police where you are, or may be, accused of a crime. If you’re unsure, assert the 5th!