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The Fifth Amendment: Does it Protect You?

FlagGavel

Breaking news that President Trump’s lawyer Michael Cohen is “pleading the Fifth” is a timely reminder that, whatever you think of President Trump, criminal suspects have important Constitutional rights that they should be aware of. In particular, the Fifth Amendment gives you the right not to incriminate yourself. By pleading the Fifth, you force the state to come up with the evidence to convict you of a crime without your help.

The Fifth Amendment Extends Beyond Trials

President Trump’s lawyer isn’t yet at trial, so some people might be confused about how he can take the Fifth. Actually, your privilege against self-incrimination extends to custodial interrogations as well. Common situations that qualify as custodial interrogations include being asked questions after arrest or while being held in jail.

However, the Fifth Amendment also applies if you reasonably believe that you are not free to stop talking to the police and to leave. For example, the police might ask you to come into the police station and, while there, imply that you are under arrest. In this situation, it could be reasonable to believe you are in a custodial interrogation, so you can invoke your Fifth Amendment right to silence.

You Must Explicitly Invoke Your Right to Silence

You have the right to remain silent when interrogated by the police, but according to the Supreme Court in Berghuis v. Thompkins (2010), you must explicitly state, “I want to remain silent.” If you simply remain silent, then police can continue to question you.

The police can also come back and ask you questions even after you have invoked your right to remain silent. In this situation, you will once again need to say, “I want to remain silent.” It is also a good idea to tell the police you want to talk to an attorney, since that should cut off all interrogation until your lawyer arrives.

Fifth Amendment and Civil Cases

The Fifth Amendment clearly applies to criminal cases, but what if you are sued in civil court? For example, someone might sue you because you hit them with your car or because they slipped and fell on your property. In a civil lawsuit, you might be called to testify as to your knowledge of the events.

In Florida, defendants can invoke the Fifth Amendment in civil cases, but the court is not required to honor it. Instead, the judge will need to hold a hearing to determine whether answering the question really puts you at risk of a criminal prosecution. If not, the court can order you to answer questions.

Speak with a Dayton Beach Criminal Defense Lawyer

A criminal case can be won or lost depending on what you say to the police. For that reason, you need an aggressive criminal defense lawyer in your corner from the moment you think you are a suspect. At Bundza & Rodriguez, we have represented numerous criminal defendants in Daytona Beach, and we are here to assist you. Please reach out today and contact us to set up your consultation.

Resources:

supremecourt.gov/opinions/09pdf/08-1470.pdf

scholar.google.com/scholar_case?case=4112603970992970699&q=belniak+v.+mcwilliams&hl=en&as_sdt=4,10

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