Criminal Law

"Pleading the Fifth" and Miranda Warnings

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If you've watched "Cops" or any other detective series, you've heard one of the familiar Miranda warnings: "You have the right to remain silent." You probably also know that defendants (people charged with crimes) can "plead the Fifth" to avoid incriminating themselves.

But do you really know what those terms mean, and how they're used in criminal investigations? There's more to it than what you see on TV!

Fifth Amendment

Under the Fifth Amendment to the US Constitution, anyone suspected of committing a crime has the right to remain silent when questioned by police or prosecutors. In other words, if truthful answers to their questions would prove you committed the crime, you don't have to answer them.

The Fifth Amendment also gives the suspect the right to have an attorney present during the questioning.


Police are legally required to make sure anyone they arrest knows about these rights. So, they usually read suspects Miranda warnings or rights (also called being Mirandized). The exact words may vary from place to place, but generally the warnings are:

  • You have the right to remain silent
  • Anything you say can and will be used against you in a court of law
  • You have the right to have an attorney present during questioning
  • If you can't afford an attorney, one will be appointed for you

After the warnings are given, police usually ask if the suspect understands them. If he says "No," the police must explain or translate them for the suspect.

Fact v. Fiction

TV, movies, books, and what we hear from friends usually lead to many misconceptions about how the Fifth Amendment works. For instance: 

False: Police must read you the Miranda warnings when they arrest you.
True: You won't automatically be read the rights if you're arrested. If police arrest you, but don't expect to question you - maybe because they have enough evidence against you already - you may not be read the warnings.

You may even be read them before you're arrested. If police ask you to voluntarily come in for questioning, but they don't have enough evidence to arrest you yet, you'll be read the Miranda warning before being questioned.

False: If you're questioned without being Mirandized and are later charged with a crime, automatically the charges will be dropped, or the court will find you not guilty.
True: Maybe, maybe not. Prosecutors may still have enough evidence to convict you of a crime, even if they can't use the evidence discovered when questioning you. Generally, statements and other evidence police get in violation of Miranda can't be used against you in court - the evidence is barred or suppressed.

False: Anyone who "pleads the Fifth" must be guilty of something.
True: Of course, if police question a suspect, or arrest him, then they have some reason to think he committed a crime.

But, mistakes are sometimes made and innocent people are wrongly accused of crimes. If you're worried about having your words twisted and used against you, you may choose to "plead the Fifth." At the very least, assert your right to have a lawyer present!

Also, it's your right not to testify against yourself. So, juries are typically told not to think a defendant is guilty simply because he chooses not to testify at trial - or to talk to police after being arrested.  

False: Police can't ask you any questions until after they read you the Miranda warnings.
True: Police can ask you basic identifying information, such as your name, address and date of birth, without having to Mirandize you.

At times they may ask you questions about why you're in a certain area or your whereabouts at a certain time, for instance. You have the right to politely decline to answer those questions, too. Remember, though, the police have other ways of investigating - like search warrants - and may still find reason to arrest you.

False: You can't change your mind if you waive your Fifth Amendment rights by answering an investigator's questions.
True: Just because you waive your rights and agree to be questioned doesn't mean you must answer all questions. At any time you may change your mind and choose to remain silent. In that case, the police must stop questioning you.

Likewise, if at first you talk to police without an attorney and then change your mind, police must stop questioning you until your attorney arrives. Once she arrives, you have to be given the chance to talk with her before questioning begins.

Also, under a 2010 US Supreme Court case, police may begin questioning a suspect again 14 days after the first interrogation ends, even if he asserted his rights to remain silent and to have an attorney present for the first interrogation. 

False: If you say nothing at all after being Mirandized, police can't question you because you've asserted your right to remain silent.
True: In 2010, the US Supreme Court ruled that a criminal defendant must clearly and unambiguously assert his right to remain silent. Saying nothing for hours while police question you may not be enough. If you say something damaging it may be used against you.

Questions for Your Attorney

  • Can a minor waive his Fifth Amendment rights without his parents' permission? 
  • Can police pay another suspect to ask me questions about a crime after I've asserted my Fifth Amendment rights? 
  • What can I do if a judge refuses to suppress a statement I made to police?
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Odin, Feldman & Pittleman, P.C.

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