Always invoke Fifth Amendment rights
Dear Lawyer Mark: I was watching TV the other day, and it seems like in every trial they showed, the defendant gave a confession. One of the commenters said they should have pleaded the Fifth, rather than talking to the police if they were guilty, but another said that they should plead the Fifth even if they are innocent. I don’t understand, because if you have nothing to hide, you should talk to them. My question is, doesn’t pleading the Fifth mean that you are guilty? — Confused in Chesapeake
Dear Confused: The short answer is no, exercising your Constitutional rights does not mean that you are guilty of anything, and, in fact, I have always told my business law students, clients, friends and everyone who has ever asked me, that if they are ever questioned by police, to exercise their Fifth Amendment rights.
To do so, you must tell the interrogating officer your personal identifying information, such as your name, and then tell the officer that you will not answer any other question because you are invoking the Fifth Amendment. Read on to see why you should do that, guilty or not.
The Fifth Amendment to the U.S. Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” Under our rules of evidence, a statement made by a person out of court cannot be used in court, unless it was against that person’s own interest. That means that the good things you say won’t necessarily come in, but the bad will because the law assumes a person wouldn’t say something bad about himself unless it were true.
Let’s assume that the police knock on your door one night and ask you to go with them. There has been a murder, and they’re sure you had nothing to do with it, but want to clear up a few things. Being innocent, you go with them to the scene of the crime, where a neighbor points at you and says, “That’s the person I saw driving by when I came out of my house.” While the officer is talking to the neighbor, you hear two EMTs walking by on the other side of the patrol car saying, “I can’t believe one person did that much damage with a straight razor.”
While being questioned later, you admit that you drove by on that street earlier in the day while you were out looking for yard sales, and say “I think, wait, I’m pretty sure it was before noon.”
You then realize it was actually after noon, because you stopped for an early lunch first, and being a truthful person, tell them of your mistake. You also volunteer to the officer that it doesn’t matter, it couldn’t have been you, because you don’t even own a straight razor, and you would never use one for any purpose because you are afraid of them.
At trial, the examination of the officer goes like this:
Detective: Mr. Smith was first evasive and lied to me about the timeline, and claimed he was there at a different time of day. He finally admitted to me that he was in the area during the time of the murder.
Prosecutor: Did he say anything indicating guilt?
Detective: Yes, he said it couldn’t be him because he doesn’t own a straight razor.
Prosecutor: How does that indicate guilt to you?
Detective: He was with me the whole time, and I never told him that’s how the victim was murdered.
The fact that you are afraid of straight razors won’t come in because it is “hearsay.” The detective legitimately didn’t hear the EMTs walking by, and had no reason to doubt his theory of what happened. Now the only possible way out is for you to testify, and subject yourself to rigorous cross-examination by the prosecutor, with many years in prison hanging on your performance.
Or, you could have simply invoked your Fifth Amendment rights up front, even though you are innocent.
Thought for the Week: “A lie can travel half way around the world while the truth is putting on its shoes.” Charles Spurgeon
It’s The Law is written by attorney Mark K. McCown in response to legal questions received by him. If you have a question, please forward it to Mark K. McCown, 311 Park Avenue, Ironton, Ohio 45638, or e-mail it to him at LawyerMark@yahoo.com. The right to condense and/or edit all questions is reserved.