Understanding the 5th

The Fifth Amendment – it’s a surprisingly confusing one, particularly the bit about remaining silent.  Just about anyone who has invoked it can tell you that claiming the right to remain silent feels pretty much like saying “I’m guilty” to the cops, but the Bill of Rights grants you that right for an important reason.  Having the right and knowing when to use it are two different things, though, and that’s the question this article is meant to address: when, exactly, should you claim your right to remain silent?

1) Police Motivation

                First and foremost, knowing when to exercise your right to remain silent requires an understanding of the motivations of the police.  Almost without exception, when someone is inclined to exercise their right to remain silent, they’re being subjected to a police investigation.  From a traffic stop to a domestic violence interview; from an intoxication citation to a full-on DUI, police rarely approach anyone without the assumption that they are guilty of a crime.  It’s actually part of the law, though you won’t find it without a significant amount of research.  The Utah Court of Appeals has declared that the police can’t detain you against your will without “reasonable, articulable suspicion of criminal activity.”  So in other words, if you’ve been stopped by the police, the police probably believe that you’re guilty of something.

                Ok, so how does knowing that help you?  After all, not everyone detained by the police is always guilty of a crime, so is being stopped and questioned really excuse enough to claim the fifth?  Well, consider the warning the police are supposed to give a citizen during an arrest: “anything you say… may be used against you in a court of law.”  Of course, the fact of the matter is that anything you say even before an actual arrest “may be used against you,” so more often than not, it’s probably best to say nothing at all.  Asking for an attorney, consulting with them, and following their advice before speaking with law-enforcement officers is almost always the smartest thing you can do.

2) Attorney Services

                The next thing to understand concerning your right to remain silent is how it can impact your attorney’s ability to defend your case.  On television, the moment a character “takes the fifth,” is the moment that everyone knows who the criminal is; but in reality, things aren’t so black-and-white.  Invoking the right to remain silent and asking for an attorney is not only a constitutional prerogative, but it’s usually the smart thing to do.  That said, at some point you are probably going to have to defend yourself from the accusation, and that’s where your attorney steps in.

                A criminal defense attorney acts as the mouthpiece for the accused in a courtroom for a very good reason – assuming they have any amount of experience, the defense attorney will have spent a lot of time in front of the judge, the prosecutor and police officers, and they’ll usually know what words will help – and hurt – a case.  Whereas you might feel intimidated, confused or stressed in a courtroom (or while being questioned by the police), your attorney will be able to present your case with a levelheadedness that’s probably beyond your reach, simply because they’re used to the courtroom atmosphere.

                Of course, no matter how experienced your attorney might be, admitting any amount of guilt will usually only make defending your case more difficult.  Consider the question most police officers ask at the beginning of a DUI investigation: “have you been drinking tonight?”  Rather than exercising their fifth amendment, many drivers will go on to tell the officer they’ve had a few drinks, but that they’re perfectly sober.  To the officer, this can be seen as a red flag, and you’d better believe that it can show up in their report, be read by the judge and prosecutor, and end up being just one more ruffle your defense attorney will have to smooth out.

3) Exceptions

                Now after reading all that, you’re probably thinking that the best policy is to just exercise your right to remain silent whenever and wherever police officers are involved, but there are certain circumstances where it’s probably a better idea to cooperate. 

The most obvious exception is during a DUI admonition (when the police officer is asking for consent to give you the chemical test).  As the officer should tell you, exercising your right to remain silent when he asks you to submit to a chemical test will be taken as a refusal to take the test, and result in a very long suspension of your license.  Since the officer will probably just end up getting a warrant to force you to take the test, remaining silent in this particular situation is usually not a good idea.

                There’s at least one other exception to be aware of: when remaining silent would result in an obstruction of justice charge.  The Utah Code for this charge is a bit lengthy, but it’s also very specific, and probably worth taking a look at.  Although it’s more geared towards active steps people might take to disrupt police activities rather than just the refusal to speak, there is a section that states someone is guilty of obstruction if they “conceal information that is not privileged and that concerns the offense, after a judge or magistrate has ordered [you] to provide the information.” So, if the judge orders you to answer a question put to you by the prosecutor, for example, you’d probably better do it!  An obstruction charge can range anywhere from a Class A Misdemeanor to a Second Degree Felony, depending on what kind of case you’re charged with obstructing, which means it could land you up to 15 years in prison and cost you around $20,000 in fines.

                So, generally speaking, remaining silent and exercising the fifth is probably a smart move, no matter how “guilty” it might make you appear, but there are exceptions.  Use your best judgment, or better yet, hire an attorney and use their judgment.  If they have experience, they’ll know when answering a question will be incriminating, and when refusing will be costly, so it makes sense to have one advise you.

Photo Courtesy of: Michal Marcol@freedigitalphotos.net

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