Right Against Self-Incrimination

This article covers your constitutional right to remain silent in the face of questioning either by a court or official proceeding, as well as being questioned in a criminal investigation.

Should you ever be criminally investigated for a crime, the best way to protect yourself is to assert your 5th amendment right against self-incrimination at the earliest possible opportunity.

The law prohibits a suspect from being legally compelled to testify against their own interests in a criminal or civil proceeding if that testimony can lead to criminal liability.

5th Amendment Right Against Self-Incrimination

A person may assert their 5th Amendment right against self-incrimination in any proceeding or official investigation, including:

• Criminal Proceedings
• Civil Proceedings
• Administrative Proceeding
• Formal Police Investigations
• Informal Investigation

The Prosecutor Must Carry the Full Burden of Proof

The Accused Can Remain Silent In The Process

The state must prove its case against the accused beyond a reasonable doubt and without the accused’s assistance. The right against self-incrimination has been interpreted by the courts broadly.

Under the law, no person acting in their official government capacity can coerce another to make a statement that could later be used to incriminate that person.

Jury May Not Infer Guilt Should You Not Testify at Trial

In a criminal case, a jury cannot draw any adverse inference against the accused should they exercise their 5th amendment right by choosing not to take the stand in their own defense.

Should the prosecution allude to such an inference against the accused during the trial, this is considered a serious ethical breach and professional misconduct, which can result in not only a mistrial but also the imposition of monetary sanctions against the prosecutor personally.

Right Against Self-Incrimination Is a Personal Right

Right Cannot Be Asserted by Another Person

The right against self-incrimination belongs only to the one asserting the privilege.

The right cannot, for example, be asserted to stop some other person from incriminating themselves or from testifying against your interests. The right against self-incrimination belongs only to the person asserting the privilege.

Cannot Assert 5th Amendment Privilege Vicariously

Criminal Conspiracies

Crimes brought against those conspiring to commit a crime do not get to avoid vicarious liability by asserting the 5th amendment privilege for a co-conspirator.

The 5^th Amendment Privilege Does Not Protect You from Having To Appear In Court

Being protected against self-incrimination does not allow you to disregard a lawful subpoena to testify in a criminal matter.

You are legally compelled to comply with the subpoena; if you don’t, you could be found in contempt and subject to arrest.

The court has the right to compel anyone by subpoena to provide court testimony, and like any other subpoenaed witness, when called to testify, you will take the stand and be placed under oath.

Refusing to Testify to Specific Questions

In such a hearing, counsel and sometimes even the court will ask questions about what you heard, saw, said, or did relating to a particular event.

However, if answering the question you or your lawyer believe could lead to evidence that may incriminate you, you may assert your 5th amendment privilege and refuse to answer.

Police Interrogations

Right to Remain Silent Under Miranda

Suppose you are in custody, and the authorities want to question you. In such a situation, the police must advise you of your Miranda rights.

Your Miranda Rights

Miranda’s Rights Must be Read Upon Arrest

This advisement of your rights under Miranda includes:

• Your 5th amendment right to remain silent.
• An expressed warning that anything you say can be used against you in a criminal proceeding.
• You have the right to an attorney before you are questioned.
• If you can’t afford an attorney, the government will appoint one for you without cost.

Remain Silent and Request Counsel. This does not mean that the arresting agents will call an attorney for you before they question you. However, it does mean that if you already have an attorney, you can consult with your attorney before answering any of their questions.

If law enforcement wants to question you, it would be wise to remain silent and request that an attorney be present during any questioning.

If you say you want to remain silent but do not ask for an attorney, the police can keep coming back to try and question you, hoping you will get tired and agree to answer questions, and more questions.

If you ask to speak to a lawyer, they can only come back to question you to clarify your desire to have an attorney present. Doing this provides them with another opportunity to tire you out and delay contacting an attorney for you.

Assert Your Right To Counsel. To protect yourself, tell the officers in no uncertain terms, “I want to talk to a lawyer before you ask me any questions. Until then, I am asserting my right to remain silent”

Consulting With a Criminal Defense Lawyer

Should you have specific questions or require additional information about your legal rights and obligations, we strongly advise you to consult with a verified Criminal Defense Lawyer about your issues as soon as possible.