Anyone familiar with the US Constitution knows that the Fifth Amendment protects citizens against self-incrimination. What you probably don’t know though is that thanks to a 2013 Supreme Court ruling, staying silent without directly invoking your Fifth Amendment right could actually be incriminating in itself. Here’s why you should speak with a La Jolla criminal defense lawyer before pleading the Fifth.
The Supreme Court case started with the 1992 murder of two brothers. A man named Genovevo Salinas was brought in for police questioning, but not read his Miranda rights, as he was not officially under arrest. As we’ve mentioned before, this type of informal questioning is a common tactic police use to get confessions and since you aren’t technically under arrest, they are not legally required to read you your rights. This is why you should always have a La Jolla criminal attorney with you any time you speak to the police, even if you do not believe you are a suspect in the crime.
Because Salinas was not under arrest, he casually answered police questions, until they asked him whether the shotgun in his home would match the shells at the scene of the crime. Salinas was smart enough not to answer that question without a lawyer present, so he fell silent. Later in court, that silence was used against Salinas. He appealed the case on the grounds that the prosecution should not be allowed to point to his silence as evidence of his guilt because the Fifth Amendment provides suspects protection from self-incrimination. Unfortunately, the Supreme Court ruled that in order to gain the benefits of the Fifth Amendment right to silence, you actually have to announce that you are invoking your Fifth Amendment rights.
This means that when you are being questioned by the police, you need to do two things -announce that you would like to speak with your La Jolla defense lawyer and that you would like to invoke your Fifth Amendment rights. It may seem wrong to have to actually state that you have the right to silence before you actually can stay silent or that you can be interrogated for a crime without being read your Miranda rights or even told you are a suspect, but that’s the way our courts have interpreted the law.
This is particularly important to know as well, because many suspects in crimes have been interrogated for lengthy periods of time -even over 16 hours in some cases, without ever being technically placed under arrest and thus, receiving the benefits of their Miranda rights. If you insist on having a lawyer present, ask if you are free to go or if you are under arrest and state that you are invoking your Fifth Amendment rights at the start of an interrogation, you can ensure your rights will be protected -or at very least that anything that happens after that point during the interrogation cannot be used against you in court.
Remember, always be wary of phone interviews with the police because they are not required to Mirandize you since you are not in custody and are engaging in a consensual conversation. Miranda warnings require there to be custodial interrogation, which is why police will often call you on the phone to ask you questions -they know most people do not know their statements can be held against them.
If you have any questions about how your Fifth Amendment right to silence works in practice, please call (760) 643-4050 or (858) 486-3024 to speak with experienced La Jolla defense attorney Peter M. Liss.