Right to Remain Silent

5th Amendment: Right to Remain Silent

The Fifth Amendment sets the standards for the United States system of criminal justice. There are several aspects of this Amendment that are pertinent to the criminal process. The Fifth Amendment guarantees that all court proceedings will be fair and the parties will be given an opportunity to be heard. The language used in this Amendment which provides an umbrella of fundamental fairness is found in the "Due Process" clause and applies to the actions by the States by operation of the Fourteenth Amendment:

"No person shall be deprived life, liberty, or property without due process of law."

A person accused of a crime is entitled to a number of rights under the Fifth Amendment including:

  • The right to remain silent if questioned or interrogated by the police.
  • The right to testify or remain silent at trial.
  • The Double Jeopardy clause which prohibits prosecution for the same offense.
Taking the Fifth: The Right to Remain Silent

You have heard of someone "taking the fifth". This is a reference to the Fifth Amendment to the United States Constitution and can be invoked to protect a person from being a witness against himself.

The Fifth Amendment comes into play as soon as the police or any governmental entity questions or confronts an individual accused or suspected of a crime. The police are not automatically required to advise you of your right to remain silent if you are being investigated for a crime unless you are in custody (jail or detained). In a typical criminal investigation, the police will attempt to catch a person off-guard. The police utilize various tactics to get information and will even say that you don't need a lawyer if you didn't do anything wrong. Since the police know that most individuals accused of a crime will deny any wrongdoing, they will use the investigation to establish several other incriminating factors including:

  • Placing the suspect at the crime scene.
  • Pinning down details and sequence of events.
  • Sizing up the suspect's credibility.
  • Catching the suspect in a lie.
  • Establishing motives.

Following an investigation, the police will offer a polygraph to the suspect with an assurance that "this can all go away if you pass a polygraph."

Miranda Warnings: Apply to Custodial Interrogations

Miranda warnings came into existence following the 1966 decision by the United States Supreme Court case of Miranda v. Arizona to satisfy the Fifth Amendment right against self-incrimination. Unfortunately, there are many misunderstandings about Miranda warnings. First of all, the police are not required to give a person Miranda Warnings unless the person is in custody. A person is in custody when the person is not free to leave, is under arrest or being detained. Miranda warnings consist of the following:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?

Once a person is in custody, the police have the upper hand. The police may try to manipulate a suspected party and build a trustworthy relationship prior to giving Miranda warnings. Of course, the police are unlikely to have any recording or video of this scenario until they are ready to provide Miranda warnings and take a statement. This routine is not uncommon.

Confessions in Sex Crimes

A sex crime investigation usually begins when a person files a report with the police. The report rarely contains more than the statement by the alleged victim that something occurred constituting a sex crime. A prosecutor's case is made substantially stronger with additional evidence beyond the statement of a single witness. Before criminal charges are formally pursued, the police will go to great lengths to obtain the confession from the accused party.

Pretext Phone Call: A "pretext phone call" is one of the investigative means utilized by the police to get a confession. This is done by having the alleged victim initiate a phone call to the suspect for the purpose of soliciting incriminating statements. Unbeknownst to the suspect, the call is recorded while the alleged victim is with the police. The police will provide the alleged victim with a script in an attempt to trap the suspect.

How Our Firm Fights Fifth Amendment Violations

ABDO LAW will examine all of the facts and circumstances to determine if a statement or confession by a person was obtained by deceptive law enforcement tactics. There may be grounds to suppress a custodial or non-custodial statement if it was involuntary, coerced or made under duress.

Our inquiry to determine the voluntariness of a confession or statement begins with the following questions:

  • Were you advised of your Miranda Rights?
  • Where did you make the statements (police department)?
  • Were you under arrest at the time of the statements?
  • Who else was present in the room during questioning?
  • Was the officer wearing a uniform or gun during questioning?
  • Were you under the influence of any medication or alcohol?
  • Were you deprived of sleep, water or nutrition prior to questioning?
  • How long were you at the police department or detained?
  • Did the police ever threaten you or state that you cannot leave?
  • Did the police ever threaten that they would tell your employer if you did not cooperate?
  • Do you have any prior or present history of mental illness?
  • Did you ever mention that you wanted to talk to a lawyer?

If you are being investigated or have been arrested for any criminal misdemeanor or felony offense, let the attorneys at ABDO LAW provide you with legal representation to get your case under control, protect your rights and advocate on your behalf. Our criminal defense lawyers are well known in the Michigan courts and have achieved the highest national ratings attainable by Martindale Hubbell and AVVO. We can also efficiently assist nonresidents and Canadian citizens who face a criminal or drunk driving offenses in Michigan.

EMAIL or CALL Abdo Law for a FREE CONSULTATION. Phone messages after business hours are forwarded to our attorneys. We offer same day, evening, weekend appointments and the ability to retain us over the internet. Payment plans and all credit cards accepted.

CALL: Metro Detroit: 586-412-5555 or Toll Free: 844-Got-Abdo