5 Steps for Invoking Your Fifth Amendment Rights

When an officer of the law is slapping cuffs on your wrist or peppering you with questions at a police department, it can be extremely frightening. And often, the police or detectives doing the investigation will do everything in their power to make it sound like all it will take to end this nightmare is a pair of loose lips. After all, getting a confession is their job.

Your job, however, is to remember that you have rights—and use them.

Criminal defense attorneys can get a lot done, but one thing they can’t do is help a client who’s already incriminated themselves. Which is why, long before you’re ever accused of a crime, it’s a good idea to know exactly what you’re entitled to do under the law to protect yourself. That means understanding your constitutional right to stay quiet and using it when the time comes.

If you’ve been accused of a crime—even if you’ve just been stopped by a traffic cop!—do yourself (and your attorney) a favor and follow these steps:

#1: Know your rights

You’ve heard the phrase “plead the Fifth” before, but do you really know what it means?

Essentially, the Fifth Amendment of the United States Constitution grants “the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself,” according to Barron’s Law Dictionary. It applies in any situation where you may be asked a question that would force you to admit to wrongdoing, or create a link to wrongdoing.

In Hoffman vs. United States (1951), the Fifth Amendment right is defined as:

The privilege against self-incrimination guaranteed by the Fifth Amendment extends not only to answers that would in themselves support a conviction under a federal criminal statute, but also to those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.

This means, by law, you’re permitted to remain silent in the event that answering the questions or giving a statement could in any way link you to a crime or help the prosecution establish guilt.

#2: Establish the situation

Invoking your Fifth Amendment right can protect you from saying something which may be used against you. This could be as simple as an officer asking you how much you’ve had to drink, or could be as serious as a felony crime investigation.

However, not all instances of speaking with police officers may be incriminatory. If, say, a neighborhood beat cop asks you if you witnessed anything regarding a crime with which you were clearly not involved, you probably don’t need to invoke—especially if your testimony as a witness could help someone.

Before invoking, determine what the situation is. Are you a suspect (you’re allowed to ask)? Are you under arrest? If the answer to either of these questions is “yes,” it’s time to invoke. If you’re not sure, you may want to remain silent anyway and retain counsel.

#3: Invoke your rights verbally

Though you’re entitled to your right to remain silent, in law enforcement situations, simply being quiet is not the same as invoking your right.

Invoking your right to silence has nothing to do with innocence or guilt—in fact, in many cases, officers will continue to try to question a subject even when it’s clear that the subject is remaining silent because they haven’t vocalized their decision to invoke.

To ensure that your rights are truly being respected, tell any law enforcement officers or officers of the court that you are invoking your Fifth Amendment right against self-incrimination.

#4: Remain silent, but stay compliant

Remaining silent does not mean you can obstruct legal proceedings or refuse to comply with officers’ commands. Failure to comply during an investigation can often land you in more trouble with the law.

For this reason, it’s important to choose not to answer potentially incriminating questions, but still remain complaint. It’s also why it’s very important to follow the fifth and final step, which is...

#5: Retain counsel

As a civilian, you may not always realize what’s incriminating and what isn’t. And because law officers may wish to question you and derive information from you as soon as they make contact, you may feel as though you must comply and make a statement.

You do not.

After any form of criminal charge has been brought against you, we highly recommend that you ascertain an attorney as soon as possible. Without such protection, there is a very real possibility that you may inadvertently provide information that greatly harms your case.

If You’ve Been Charged with a Crime in Seattle, Contact the Experienced Criminal Defense Lawyers at Baker, Lewis, Schwisow & Laws

The expert defense team at Baker, Lewis, Schwisow & Laws, PLLC vigorously defend the rights of individuals facing a multitude of charges in Seattle, Bellevue, and Kirkland. Contact us today at 206.209.0608 or fill out our online contact form to get more information or to get a free case review.