How to Invoke Your 5th Amendment Right to Remain Silent
Do you have to answer police questions? No, you can refuse to answer questions. For example, you can politely tell the officer: “I don’t answer questions from law enforcement officers without my attorney being present.”
One of the benefits of invoking your right to remain silent, is that action can be used against you at trial in a criminal case. In other words, if a criminal case goes to trial, the jury is never told that the person invoked their rights. Guilty people often attempt to “talk their way” out of an arrest, which rarely works in their favor.
If you decide to speak to law enforcement about a criminal allegation without an attorney present, you are waiving important rights. Those rights include your Fifth Amendment rights against self-incrimination and your Sixth Amendment right to have an attorney represent you.
Before you waive your constitutional rights, talk with a criminal defense attorney. An attorney is often best positioned to explain their side of the story to the law enforcement officer. You can invoke your rights by saying:
“I’m taking the 5th and 6th amendment. I will remain silent until after I speak with my attorney.”
Then, remain silent. If you are lawfully detained, you can tell the officer your name, address, and date of birth without waiving your rights.
In a more formal setting such as a deposition, hearing or trial, the person might say:
“On the advice of counsel, I invoke my fifth amendment privilege against self-incrimination and respectfully decline to answer your question.”
Your 5th Amendment right to remain silent and your 6th Amendment right to counsel is explained in the Miranda rights warning read by officers before a custodial interrogation. But even if the officer never reads you Miranda warnings, you can still invoke your rights.
People sometimes ask: “Won’t invoking my right to remain silent make me look guilty?” Maybe, but innocent people often assert their right to remain silent until they speak with an attorney.
People familiar with the criminal justice system are more likely to invoke their right to remain silent. For example, law enforcement officers, judges, and prosecutors are more likely to invoke their rights if they are questioned about criminal wrongdoing or are the target of a criminal investigation.
Attorneys Can Help You Invoke Your Right to Remain Silent
If you hire a criminal defense attorney, the attorney can notify the investigating officer that you are invoking your rights under the 5th and 6th Amendments. This notice prevents the officers from asking you any questions about the accusations or coming to your home to interrogate you.
Contact us to find out why you don’t have to answer the law enforcement officer’s questions. If the officer intends to make an arrest, an attorney can help you surrender under terms that may speed up your release and save you money. We can contact the prosecutor to discuss lowering the bond amount.
At Sammis Law Firm, our criminal justice attorneys also handle other critical details that might minimize the embarrassment, stress, and expense accompanying the arrest.
Call 813-250-0500.
What Does the Fifth Amendment Say?
The Fifth Amendment of the United States Constitution provides:
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 offence 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.
The simplest way to understand the right to remain silent can be found in various versions of the Miranda, including:
You are under arrest for the crime of _________ . You have the right to remain silent. Any statement you make may be used for or against you in a court of law.
You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.
Do you understand each of these rights that I have explained? With these rights in mind, would you like to answer questions?
To assert your rights, the correct answer is: “No, I do not answer questions from law enforcement officers without my attorney being present.”
What if the Arresting Officer Never Read the Miranda Warning?
As a criminal defense attorney, one of the most common questions that come up during the initial consultation is:
“The officer arrested me but didn’t read my Miranda warnings. How does that help my case?”
Miranda warnings are only required when you are “in custody” and when the officer is “interrogating” you by asking questions that call for an incriminating response.
If the Miranda warnings were required but not given, then any statements you made during questioning should be suppressed if your attorney files the appropriate motion to suppress those statements.
Even if the arresting officer didn’t read you the Miranda warnings, you might still refrain from making an incriminating statement because, under certain circumstances, it might still be used against you for impeachment purposes. Additionally, if you made “spontaneous statements,” the admissibility of those statements does require the reading of Miranda warnings.
What are the Protections against Self-incrimination in Article 31, UCMJ?
When the U.S. Supreme Court established the “Miranda Warning” requirement, it referenced the military’s “warning rights” practice under Article 31, Uniform Code of Military Justice (UCMJ)(Section 831 of Title 10, United States Code).
The U.S. military justice system provides an accused with rights and due process protections generally considered superior to those offered to a defendant in civilian criminal courts. For example, Article 31, UCMJ, gives members of the armed services the following rights:
- rights against self-incrimination; and
- the right to be told of the suspected offense before questioning begins.
Servicemembers also have a right to free military counsel when:
- questioned as a suspect concerning accusations of committing a criminal offense;
- after a referral of court-martial charges; and
- after being arrested or apprehended.
The military justice system also provides these rights earlier in the process. For example, these rights apply whenever the
servicemember is questioned as a suspect of an offense. In civilian practice, Miranda rights or warnings are not required unless there is custodial interrogation by law enforcement personnel.
The attorneys at Sammis Law Firm often represent individuals accused of a crime committed on federal property, including at the MacDill Air Force Base. For any crime allegedly occurring on a military base or installation, including MacDill Air Force Base, the suspect might be asked to sign a statement called the Acknowledgement of Offenses and 5th Amendment/Article 31 Rights Advisement.
The form used for criminal investigations at the MacDill Airforce Base might require that the suspect acknowledge the following statement:
“I have been advised that I am suspected of the following offenses: ___________________.”
The form also requests that the suspect acknowledge being advised of the following rights according to the 5th Amendment of the U.S. Constitution and Article 31 of the Uniform Code of Military Justice (UCMJ):
- [ ] I have the right to remain silent
- [ ] Any statements I make may be used as evidence against me at a trial by court-martial.[ ] I have the right to consult with legal counsel before any questioning. This legal counsel may be a civilian lawyer retained by me at my own expense, a military lawyer appointed to act as my counsel without cost to me, or both.
- [ ] I have the right to have such retained civilian lawyer and/or appointed military lawyer present during this interview.
- [ ] I have the right to terminate this interview at any time.
The form might also ask the suspect to acknowledge waiving the following rights:
- [ ] I further certify and acknowledge that I have read the above statement of my rights and fully understand them, and that:
- [ ] I expressly desire to waive my right to remain silent.
- [ ] I expressly desire to make a statement.
- [ ] I expressly do not desire to consult with either a civilian lawyer retained by me or a military lawyer appointed as my counsel without cost to me before questioning.
- [ ] I expressly do not desire to have such a lawyer present with me during this interview.
- [ ] This acknowledgment and waiver of rights are made freely and voluntarily by me, and without any promises or threats having been made to me or pressure or coercion of any kind having been used against me.
Read more about finding an attorney for federal misdemeanor crimes at MacDill Air Force Base.
Adverse Inference From Invocation of Fifth Amendment Right
The jury in a civil trial is entitled to draw an adverse inference from a party’s invocation of the Fifth Amendment privilege.
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (stating that, in civil cases, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them”)
Coquina Investments v. TD Bank, N.A., 760 F.3d 1300, 1311 (11th Cir. 2014) (in action brought by investment firm against bank for aiding and abetting a Ponzi scheme, the district court did not abuse discretion in allowing investment firm to call
non-party witness, the former vice president of the bank, to the stand for the purpose of having him invoke the Fifth Amendment privilege in the jury’s presence and thereafter instructing the jury that they could draw an adverse inference from the invocation, as the adverse inference was trustworthy under all of the circumstances)
United States v. A Single Family Residence and Real Property Located at 900 Rio Vista Blvd., 803 F.2d 625 n.4 (11th Cir. 1986) (Forfeiture) (at hearing concerning claimant’s innocent owner defense in civil forfeiture case, government read
deposition testimony into record where witness claimed Fifth Amendment privilege; district court drew a permissible inference from this failure to testify that the testimony would not have been favorable to the claim contesting forfeiture)
Arango v. United States Dept. of Treasury, 115 F.3d 922, 926-27 (11 Cir. 1997) (Forfeiture) (“[T]he Fifth Amendment does not forbid adverse inferences against civil litigants, including claimants in civil forfeiture proceedings, who assert the privilege against self-incrimination”)
Mirlis v. Greer, 952 F.3d 36, 45, 47 (2d Cir. 2020) (explaining that, “[t]o be admissible, a witness’s invocation of the Fifth Amendment privilege against self-incrimination must satisfy Federal Rules of Evidence 401 and 403,” and concluding
that evidence of defendant’s invocation of privilege was not unfairly prejudicial such that district court did not abuse its discretion in admitting evidence); id. at 42-44 (district court’s jury instruction, given after defendant invoked Fifth Amendment while testifying, that the jurors “may, but are not required, to infer” from a witness’s refusal to answer on Fifth Amendment grounds that “the answer would have been adverse to the witness’s interest and the interests of any parties in the case who are closely associated with the witness” was neither erroneous nor unfairly prejudicial)
Additional Resources
Wikipedia on the Right to Silence and Miranda Warnings – Visit Wikipedia to learn more about the right to remain silent in the United States and worldwide. The article also explains the right to remain silent in the Uniform Code of Military Justice that existed before the ruling in Miranda v. Arizona. Specifically, Article 31, UCMJ, provides protections against coercive self-incrimination. Learn more about why you do not have to answer a police officer’s questions. Read more about the Sixth Amendment right to counsel.
This article was last updated on Friday, November 1, 2024.
