The United States Constitution has been around for nearly 235 years. There are important protections in the Bill of Rights. The Bill of Rights are enumerated in the first 10 amendments to the U.S. Constitution. Enumerated rights in the Bill of Rights include freedom of the press, freedom of speech, freedom to assemble and freedom of religion. The Bill of Rights includes the right to bear arms and the right to be free of unreasonable searches and seizures. Other protections in the Bill of Rights include the right to a jury trial and the right to be free from cruel and unusual punishment.
Arguably, the most important rights to a criminal defendant are enumerated in the Fifth Amendment. Included is the right to due process, the right to be free from double jeopardy, and the right against self-incrimination.
“No person shall be held to answer for a capital, or otherwise infamous crime unless on a presentment of indictment of a grand jury…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;…” (U.S. Const. mend V.)
The right to remain silent is a cornerstone of American jurisprudence. We have all heard of people invoking the right “to plead the fifth.” We often heard a witness state, “I decline to answer because the answer may incriminate me,” either at trial or during police questioning.
Some people, including a former president often said only guilty people invoke the Fifth Amendment. News reports indicate that former president has “pled the fifth” in numerous depositions in cases where he is the named defendant. Asserting Fifth Amendment rights can be used against a person in a civil case. See Mitchell v. United States, 526 U.S. 314 (1999).
The former president is wrong. The Fifth Amendment protects everyone. The Fifth Amendment protects the innocent and the guilty.
The privilege against self-incrimination is available to both innocent and potentially guilty people. See Ohio v. Reiner, 532 U.S. 17 (2001). The Fifth Amendment’s “basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances…” Id. at 21. There, the Supreme Court said, “truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.” Id.
So, what does the innocent person say when confronted by the prospect of police questioning? Professor James J. Duane of Regent Law School in Virginia Beach, Virginia is an expert on Fifth Amendment law. He does not believe the old language, “I decline to answer because the answer may incriminate me,” is applicable anymore. Instead, Professor Duane recommends stating the following:
“On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which according to the United States Supreme Court, protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit.”
Contact Herzberg Law Firm if you are accused of a crime. Don’t answer questions. Steven Herzberg focuses on Driving Under the Influence cases. Don’t speak to the police. Call Steven Herzberg instead.