You’ve no doubt heard people speak of “taking,” “claiming,” or “pleading” what’s known as “the Fifth.” These phrases refer to the Fifth Amendment to the U.S. Constitution—specifically, the privilege against self-incrimination mentioned in it.
Witnesses can plead the Fifth—that is, invoke the Fifth Amendment's privilege against self-incrimination—in appropriate circumstances. In grand jury proceedings, for example, witnesses who are called to testify but believe their testimony might incriminate them in a subsequent case can generally refuse. Somewhat similarly, the Fifth Amendment gives criminal defendants the right to not even take the witness stand at trial.
THE ROLE OF STATE LAW
This article discusses the law under the federal constitution. You should know, however, that states have their own constitutions and statutes. It might be that your state’s law offers you more protection in dealing with the police than what’s discussed in this article. A knowledgeable criminal defense lawyer will be able to explain the ins and outs of the law that applies to your situation.
Miranda: Born of the Fifth Amendment
The Fifth Amendment applies both in and beyond the courtroom. It’s the primary basis for 1966 U.S. Supreme Court decision Miranda v. Arizona, one of the best-known cases in American history. In Miranda, the Court essentially held that someone who is in police custody, before being questioned, must be warned that: “[H]e has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Miranda v. Arizona, 384 U.S. 436 (1966).)
Officers don’t have to recite this exact language to suspects, but they do have to clearly and unambiguously get its meaning across.
Contrary to some perception, the Miranda warnings aren’t necessarily required when the police suspect someone of a crime, or even when they arrest someone. Even when the warnings are required and the police either violate or don’t give them, the case won’t automatically be dismissed. In fact, statements obtained by law enforcement in violation of Miranda are often admissible in court for limited purposes. (Miranda prevents prosecutors from using illegally obtained statements to prove their case against a defendant—but it often allows them to use those statements to “impeach” (discredit) the testimony of a defendant who has chosen to testify.)
Officers have to give the Miranda warnings only when they (1) take suspects into custody or otherwise deprive them of their freedom “in any significant way” and (2) interrogate them. So, they don’t have to give the warnings to someone they haven’t taken into custody. (Generally, if a reasonable person in the suspect’s shoes wouldn’t feel free to leave, the suspect is “in custody.”) And they can skip Miranda if they arrest someone but hold off on interrogating him or her.
On the other hand, officers are sometimes required to give the Miranda warnings even though they haven’t directly questioned the suspect. “Interrogation” within the meaning of Miranda usually consists of questions aimed directly at the person in custody—for instance, “Why were you at the scene of the crime when we arrived?” But “interrogation” also covers words and actions that the police should know are “reasonably likely” to lead to an incriminating response. (Rhode Island v. Innis, 446 U.S. 291 (1980).)
The rules on Miranda and police interrogation are intricate. They’re so intricate that—perhaps counter to what you might expect—there are circumstances in which the prosecution can use your silence against you. For more on that topic, see Invoking Your Right to Remain Silent.
A suspect advised of the Miranda rights is allowed at any point to assert them. The suspect can stop any questioning before it starts or begin to answer police questions before cutting off the interrogation. (Of course, any statements from the suspect before asserting these rights will likely be admissible in court.)
Invoking Miranda forces the police to stop interrogating. But the rules on what constitutes a Miranda invocation are notoriously complex.
Miranda covers two separate rights:
- the right for questioning to end until the suspect can consult a lawyer, and
- the right to remain silent—to not say anything at all.
(A suspect has the right not only to consult a lawyer prior to any questioning, but also to have the lawyer present during the questioning.)
Invoking one right has a somewhat different effect than invoking the other. After a suspect has claimed the right to counsel, the police must generally wait to attempt interrogation until a lawyer has been made available or the suspect has initiated “further communications" with the police. But if the suspect has claimed the right to silence, the police have more leeway as to when they can give interrogation another go. (Edwards v. Arizona, 451 U.S. 477 (1981); Michigan v. Mosley, 423 U.S. 96 (1975).)
Determining whether a suspect has invoked or waived the Miranda rights can be tough. For a waiver of these rights to be valid, it must be “knowing and voluntary”—in essence, made freely and intentionally, and with awareness of the rights and the consequences of abandoning them.
Suspects can waive the Miranda rights “expressly”—for example, by saying to an officer, “I understand my rights but will talk to you,” or by signing a form that explains and waives the rights. But a waiver can also be “implied”—for instance, where an arrestee indicates an understanding of the rights and simply begins to answer them.
Just like a waiver, an invocation of the Miranda rights must be “clear and unequivocal.” If the suspect makes what a reasonable person would think might or might not be a request for a lawyer, for example, the police don’t have to stop their questioning. (Davis v. United States, 512 U.S. 452 (1994); Berghuis v. Thompkins, 560 U.S. 370 (2010).)
Questions for Your Attorney
- What are the various situations where the prosecution can use your statements or silence against you? Are there any circumstances where prosecutors can’t use your statements for any purpose whatsoever?
- What happens to evidence the police find as the result of an illegally obtained statement?
- Do the Miranda warnings apply when the police question you about a crime other than the one they arrested you for?