Text of the Fifth Amendment to the United States Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
What the Right to Remain Silent Covers
The words "nor shall be compelled in any criminal case to be a witness against himself" give us our right to remain silent, or privilege against self-incrimination, which are used interchangeably, but apply differently. The right applies to testimonial evidence that is obtained during an investigation as well as after criminal charges have issued. Testimonial evidence includes words that may be used against the declarant or adoptions of words uttered by others. Generally, it does not include non-testimonial evidence such as DNA, breath samples and blood tests. (Such physical evidence, generally, is covered under the Fourth Amendment's protection against unreasonable searches and seizures.) Caselaw interpreting the Fifth Amendment's protection against self-incrimination is extensive, complicated and nuanced. This article does not give legal advice, which should only be effectively given only upon analysis of all of the facts and circumstances of a particular case.
How Does the Right to Remain Silent Apply to You?
If you are investigated for a crime, you may be asked to answer questions. Your right to remain silent gives you the right to refuse to answer any questions by the police. Answering some, but not all, questions by an officer may furnish incriminating evidence without you knowing it. It is not a good idea to try to outsmart investigators. If you want to invoke your right to remain silent, then be silent. The police do not need to inform you of your right to remain silent under Miranda v. Arizona unless you are in custody and you are subject to interrogation. You should be aware of your rights, which apply even before you are in custody and even when you are not being interrogated. Miranda warnings aren't required in many scenarios. If you wish to protect yourself, know your rights. You will face pressure to talk. Witness statements are the most utilized tool by law enforcement in building cases, and that includes statements by suspects. Respectfully request a lawyer.
Privilege Against Self-Incrimination
Legal privileges apply to testimony of a witness and can be invoked or waived. Once a Fifth Amendment privilege is invoked, the court may inquire, through the witness' lawyer, as to whether the invoking witness actually has a privilege against self-incrimination. The test is whether one's testimony would tend to incriminate the witness if compelled to testify. The privilege does not apply simply because a witness does not wish to testify. So, if a witness invokes his or her privilege against self-incrimination, there must be realistic possibility that the testimony would provide incriminating evidence against the witness. Likewise, even if a witness has a valid privilege against self-incrimination, the witness may choose to waive the privilege and testify nonetheless.
