What does "taking the Fifth" mean? If you've been suspected of a crime, how and when do you use your rights under the Fifth Amendment?
The Fifth Amendment's self-incrimination clause says that no person "shall be compelled in any criminal case to be a witness against himself." Basically, it means that the government, or law enforcement, can't force you to talk to implicate yourself in a crime. However, what that looks like in practice... is a little more messy. When do you have a right to remain silent? When do you become a suspect? What does compulsion look like? Can your silence be used against you?
We talk about how the Supreme Court has interpreted these questions, and how to exercise Fifth Amendment right when you are interacting with law enforcement, with Tracey Maclin, a professor of Constitutional law and Constitutional criminal procedure at the University of Florida's Levin School of Law, and Jorge Camacho, a clinical lecturer on law and policing at Yale University, where he is the policy director of the Yale Justice Collaboratory.
Transcript:
Clip: The department was forced to drop the charges because you forgot to read him his Miranda rights. What possible reason is there for not doing the only thing you have to do when arresting someone?
Nick Capodice: Hannah. Name me one thing you can count on seeing. And just about every movie or TV show that has anything whatsoever to do with crime.
Hannah McCarthy: Bad station coffee. Or, like, good cop, bad cop. Right. You have the right to remain silent. Miranda rights, right? Yes.
Clip: I did read him as I did a version of that. Do you even know the Miranda rights? Yes. Let's hear them then.
Nick Capodice: This Miranda warning is the way that most people understand their right under what is called the self-incrimination clause of the Fifth Amendment. The actual language of the clause is this: A person shall not, quote, "be compelled in any criminal case to be a witness against himself."
Hannah McCarthy: I feel like I plead the Fifth is a part of this, right? I'm actually really excited to talk about this because I think I know on a basic level that if law enforcement arrests someone, they tell the person that that person has the right to remain silent and the right to an attorney. But I don't really know why or how that's supposed to work or in what situations that applies, what the consequences might be. There seem to be a lot of what ifs here, is what I'm saying.
Nick Capodice: I think you might know where I'm going here, Hannah. While we as a public may think we understand what it means to not incriminate yourself, the legal interpretation is a lot more complicated. And in order to understand what that means, we can't just talk about the Miranda warning because that is only a tiny piece of how the self-incrimination clause works. So that is why today we are talking about the Fifth Amendment, but we're not talking about the whole Fifth Amendment. Hannah, we're going to talk about this one clause, the most famous one in the fifth, the self-incrimination clause. It is less than a sentence, but textbooks worth of history.
Jorge Camacho: It becomes complicated when you realize that virtually every word in that sentence is subject to interpretation.
Nick Capodice: I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today on Civics 101, we're going to talk about the self-incrimination clause of the Fifth Amendment. When it applies, when it doesn't, and why The answers to these two seemingly simple questions are not so simple after all.
Clip: So do you read Miranda as saying that there cannot be questioning unless the judge says, You know, I don't really want to answer that question. What if he said, Do you want to remain silent? So what if a person says, I'm not waiving, but I'm not saying that I so let's say he's answering the questions. All of a sudden he gets a particular question and he says, you know, I think there are several questions around what if there was no interrogation?
Clip: It's important to have a clear rule here because.
Clip: Invocation does effectively sound like a.
Clip: Clear rule.
Nick Capodice: Before we jump into this one clause, Hannah, we are a show about the basics of how our democracy works. So we'd be remiss if we didn't quickly go through what the whole Fifth Amendment says. So, Hannah, would you do the honors and read the amendment for me?
Hannah McCarthy: Yeah, sure. 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 an 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. That's a lot of clauses.
Nick Capodice: Sure is. It's a lot. And to put it as simply as possible, you have a right to a trial by jury. With the exception of military cases, you can't be punished for the same crime twice. With some exceptions, you can't be forced to implicate yourself in a crime. You must be treated fairly under the law. And the government can't just take your property for its own use without paying you for it.
Hannah McCarthy: You're already saying things like, with some exceptions in most circumstances, which tells me that there is a lot of potential for interpretation throughout this whole amendment.
Nick Capodice: And I'm trying to avoid a five hour episode for everyone's well being.
Hannah McCarthy: Okay fair. When it comes to how the Constitution is put into practice, there is a narrow interpretation and then there are broader interpretations, like, for example, a narrow interpretation of the rule that a paper is due at midnight would be that you can only submit that paper at midnight, no earlier, no later at midnight, as opposed to how most of us would interpret it, which is just get the paper done any time before midnight. Can we start with what the Supreme Court and lawmakers might see as the most narrow interpretation of this idea that a person cannot be, quote, compelled in a criminal case to be a witness against himself?
Jorge Camacho: In a very narrow sense. That clause just basically means you can't be called to the witness stand at a trial where you're the criminal defendant and be required to testify in that trial.
Nick Capodice: That's Jorge Camacho, a clinical lecturer at Yale Law School and the Yale Justice Collaboratory.
Hannah McCarthy: So if you've been charged with a crime, you can't be forced to sit on the stand and talk to the prosecutors. You can do that, but you can't be forced to.
Nick Capodice: Yeah. And when we were talking about crime, we specifically mean when a law has been broken, we're not talking about civil cases or a dispute between two people or groups. The two sides here are the law. That's the government and you and also the Fifth Amendment only applies to testimonial evidence.
Tracey Maclin: Well, what does that mean? That means that it has to relate to or concern communications coming from the person's mind.
Nick Capodice: This is Tracey Maclin. He's a professor at the Levin School of Law at the University of Florida, where he teaches constitutional law and constitutional criminal procedure.
Hannah McCarthy: What does he mean when he says communications coming from your mind?
Nick Capodice: It might be easier to understand that by talking about what doesn't count as testimonial evidence, meaning physical evidence.
Tracey Maclin: Physical evidence is not testimonial within the meaning of the Fifth Amendment because it doesn't relate to the workings of your mind. It's just about your body. So forcing blood from you or forcing you to stand in a lineup to forcing you to say, put the money in the bag, compelled handwriting or voice exemplars are not are not testimonial within the meaning of the Fifth Amendment. And then finally forcing you to put on a piece of clothing.
Hannah McCarthy: Okay. But that narrow interpretation where the self-incrimination clause only applies to testifying on the stand doesn't account for everything that happens before a trial. Like when law enforcement interrogates you after arresting you. And yet we still have the Miranda warning, which says that, quote, You have the right to remain silent. So I'm guessing that this narrow interpretation is pretty obsolete.
Tracey Maclin: But the problem with that interpretation of the Fifth Amendment, it makes no sense because when the Fifth Amendment was placed in the Constitution in 1791, criminal defendants couldn't testify because they were considered to be biased, which they obviously were. So I think the language itself is set out in a broad manner. Now, you could use the language to say, well, only when. Only when a person is actually put on trial and forced to take the witness stand, do you trigger the Fifth Amendment. That's not how we interpret it, and that's not how the court has interpreted the clause for a very, very long time.
Nick Capodice: And that broader interpretation of when the Fifth Amendment is, as Tracey says, triggered, is basically the rest of this episode. But before that, I want to quickly talk about why the framers wanted this right enshrined in the Bill of Rights in the first place. Like so many other things, it all goes back to how the framers resisted recreating the kind of tyrannical government they saw as problematic in England.
Tracey Maclin: In the 16th and 17th century. The self-incrimination clause, what we often refer to as the Fifth Amendment, was designed to protect religious and political dissenters who were called before judges and sometimes legislatures and questioned about their religious beliefs or their political beliefs.
Jorge Camacho: The framers of the Constitution, where this protection is written, were concerned with abuses, abuses of power by the state against individual citizens and individual residents of a country. They were concerned with kind of the the history of abuse that they had seen, especially in England over the course of many centuries, where the crown, the government in England would often use its power in an ultimately unfair way and oftentimes abusive way against individuals, including, for example, forcing those people to offer incriminating evidence against themselves in trials where they're the defendant and they're the ones subject to punishment.
Hannah McCarthy: All right. So this clause is vague. And we've agreed that over the course of history, it is not limited to testifying in a trial. So when does this right to not incriminate yourself actually apply? Does it start the moment law enforcement says you're under arrest?
Nick Capodice: Yeah, This is where the clause starts to get messy. Meaning the way the Supreme Court has interpreted the clause is messy. So let's start with that question of when this Fifth Amendment right kicks in is triggered or in legalese, attaches. Looking at the language of the self-incrimination clause, we mean the point at which you could argue the government is, "compelling you."
Jorge Camacho: I think the clearest answer we have so far, which is still not very clear, is that the right attaches whenever your interactions with the state or with law enforcement specifically become adversarial. What that usually means is that once it's clear to the state that they view you as an adversary, like being a criminal suspect in a case, then your right against self-incrimination certainly attaches, then.
Nick Capodice: This is the point where you start being seen as a suspect. Law enforcement thinks you may have committed a crime. And the reason we have the Miranda warning in the first place is because up until 1966, law enforcement didn't necessarily need to notify you of your right not to speak with them or your right to have legal counsel.
Jorge Camacho: Yeah. So the case that really brought the Fifth Amendment and the self-incrimination clause to the modern era was Miranda versus Arizona. This is a 1966 Supreme Court case, which, again, if you've watched any police procedural in the last 50 years, you've seen you've heard some version 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 a right to an attorney. If you can't afford one, one will be provided to you free of cost. This is a set of warnings that the Supreme Court has mandated all police officers to say to provide to anyone that they are about to interrogate in a custodial setting.
Hannah McCarthy: A custodial setting, meaning the police have taken you into custody.
Nick Capodice: Right. In 1963, police suspected that a man named Ernesto Miranda had committed a kidnaping and a rape. So they arrested him and interrogated him for 2 hours and eventually got a written confession. The police officers admitted they hadn't told Miranda about his right to have an attorney present during interrogation, but the confession was still used in his trial and he was found guilty. Miranda then appealed, saying that law enforcement had never informed him of his rights to remain silent or his right to an attorney, meaning his confession wasn't voluntary.
Clip: But the question is, is not so much whether he should have a lawyer in the station house with him sitting beside him during interrogation or whether he could telephone, but whether the state is constitutionally obliged to advise him that he has a right to consult an attorney before being questioned.
Nick Capodice: The Supreme Court decided that Miranda was correct. A prosecutor cannot use testimony by a defendant unless law enforcement had informed that person. Of their right to remain silent and their right to an attorney. And they took it a step further by saying that the prosecutor had to prove that the person had voluntarily waived those rights.
Tracey Maclin: Prior to Miranda, police officers would arrest people sometimes on their rights, but sometimes not tell them their rights. And they would say things to them that would suggest that the person would be much better off speaking than not speaking. This is an instance in which the Supreme Court said that where you're under arrest and where you're interrogated, the government has to inform you of your right to remain silent and the knowledge that if you do speak, it can be used against you. So that that was that was a situation where the Supreme Court, if you will, draw a line in the sand and said this is compulsion. And it was a very I don't want to say radical, but it was it changed the approach that police officers and detectives specifically had to take when they interrogate people.
Hannah McCarthy: Okay. That makes sense, because that's a pretty clear instance of when your interaction with law enforcement has become adversarial. But once you're in custody, does that mean you just don't have to answer questions like, what if law enforcement is just talking to you casually but not doing something that sounds or looks like they're interrogating you?
Nick Capodice: I think you know what I'm going to say about this, Hannah?
Hannah McCarthy: That it's up for interpretation.
Nick Capodice: Yeah. There have been a number of Supreme Court cases where the main question essentially is what counts as an interrogation and what doesn't.
Jorge Camacho: So, for example, if I ask you a question in a custodial setting and you are, it's clearly that this is a custodial situation. Yes, that almost certainly constitutes interrogation. You're not free to leave. You are my suspect in this case. I'm asking you a question about that case. That's interrogation. But let's say, for example, I don't ask you a question. I just make a comment. I make an observation. And you, after hearing that comment, respond, does that constitute interrogation? I didn't ask you anything. I just said something and you responded to it. The court has struggled with that question. Again, some justices say, well, yes, that can and should be interrogation, because if it's a statement intended to elicit a response from the suspect, then how could it not be interrogation? In other scenarios, however, it may not be considered interrogation.
Hannah McCarthy: What does this look like in real life?
Nick Capodice: One example I'm going to give you is the Supreme Court case, Rhode Island v Innis 1980.
Jorge Camacho: In this case, a man named Thomas Innis was arrested after being accused of robbery by a taxi driver. Mr. Innis was informed of his Miranda rights by the police officers. He exercised his right to remain silent and requested a lawyer. So it was clear that no interrogation could follow before he at least saw his lawyer.
Hannah McCarthy: So if someone says, I want to speak with an attorney, then law enforcement is not supposed to question them.
Nick Capodice: Right. And technically, the officers did not question Innis.
Jorge Camacho: As Mr. Innis was being transported. Officers who were in the car with him started talking to one another with Mr. Innis in the back seat. Even though Mr. Innis had been arrested for this robbery, they couldn't find the gun that he had used in the robbery. Presumably he had discarded it in order to evade having the gun on him. When he was found, one of the officers made a comment within earshot of Innis in the back seat that he wanted to get the gun out of the way because the kids in the area of the school could find it. Upon hearing this, Innis then led the officers to an area near some rocks and pointed them in the direction of the gun where it was recovered and used in evidence against him at his trial. And it's later contested the the admissibility of that gun at trial.
Hannah McCarthy: So what did the Supreme Court decide?
Jorge Camacho: The majority of the court held that this wasn't interrogation, that the officers speaking to themselves, even if they knew that Innis could hear them, and even with the kind of obvious understanding that anything that they might say to one another could elicit a response from him that was not interrogation.
Nick Capodice: Essentially, the Supreme Court said that even though the officers had arrested Innis, informed him of his rights and he had requested an attorney, they could still speak about the crime in his presence without violating his Fifth Amendment right. Requesting an attorney is a way to clearly invoke your Fifth Amendment right to remain. Remain silent and to signal your plan to do so. But that doesn't mean police officers have to remain silent or stop talking to you.
Jorge Camacho: Yeah. So they're saying that the conversation between the two officers about how it'd be a terrible shame if a little girl found this gun and shot herself, that that statement was not interrogation, because in part it wasn't directed at Innis and because it's not necessarily the case that that statement, even if heard by Innis, would prompt any kind of response from him or that he would know to respond to it. It's certainly a play on Innis conscience, an attempted play at his conscience in order to get him to direct them to where the gun is. But it's not as clear as simply asking him, Innis, where is the gun? Can you point us to it? It's less than that. And so it's therefore not interrogation in this case.
Hannah McCarthy: All right. What I'm hearing is that if you have been read your rights, basically anything you say could be held against you, even in a situation where you've invoked your right to remain silent and requested an attorney.
Nick Capodice: Yeah. And it's worth noting here that this case, like Miranda, was pretty controversial, even though the justices agreed on the fact that the Fifth Amendment protects you from being compelled to speak under interrogation. This decision still caused controversy among justices about the definition of interrogation itself.
Jorge Camacho: This decision elicited a very sharp dissent by Thurgood Marshall, who called out the court for kind of the inexplicable nature of their of their holding. And he said, I am substantially in agreement with the court's definition of an interrogation, but I'm utterly at a loss to understand how this standard, as applied to the facts before us, can rationally lead to the conclusion that there was no interrogation. So he's saying we're all on the same page about what constitutes an interrogation. We agree on what that formula or definition is. So why is it that we're coming to two complete different conclusions about whether or not this was an interrogation? In Justice Marshall's view, he had the understanding that any statement you make to someone in custody that you can naturally assume is going to elicit a response from them is interrogation. It's a form of questioning. But here we have the Supreme Court, a majority of the Supreme Court saying, no, it's not an interrogation.
Nick Capodice: My take on what Marshall is acknowledging here is the authority that law enforcement has when they've taken a person into custody. The fact that there is an inherent power dynamic there that must, in his view, be considered when deciding if a person feels compelled to speak whether or not the police are asking questions about a crime. And actually, back to when Miranda was decided, there was criticism from legal scholars that Miranda itself didn't more clearly define what law enforcement could and could not do when they've placed someone in custody beyond informing them of their rights.
Tracey Maclin: The Supreme Court could have said that fact was urged by the ACLU to say police should not be allowed to interrogate anybody who's under arrest until they've had a chance to speak with their lawyer. Because if you really want to protect the Fifth Amendment right, you need to see your lawyer who will tell you in no uncertain terms or a lawyer, he or she will tell you under no circumstances do you talk to the police. No circumstances. But Miranda didn't go that far. They were urged to go that far. And frankly, I think they should have gone that far. But they didn't go that far because they didn't want to choke off interrogation entirely. They wanted to put the ball in the court of the arrestee. And I think it's fair to say that Chief Justice Warren and the majority thought that once these warnings are given to most people, they will invoke their rights and they won't talk. Well, it turns out that the Supreme Court, if this was part of their calculus, miscalculated. 80% of people who are arrested and given Miranda warnings, waived their rights and talk to the police.
Hannah McCarthy: 80% seriously.
Nick Capodice: That is according to a study from 1991. And there are a number of reasons why people might talk to police even after being read their rights, for example, they might not fully understand their rights. There are barriers due to any number of reasons, everything from their lack of familiarity with the law to their age, language skills, level of cognition. And the Supreme Court has given law enforcement a lot of freedom to do everything in their power to get you to waive those rights, including deception and appealing to your emotions. And we're going to get to all of that right after this break.
Hannah McCarthy: But just before the break, we have a fairly new development here at Civics 101. We have a quiz paired with every weekly episode that you can find at civics101quiz.com. It's basically a great way to see what you learn by listening to our Civics 101 episode or a really good excuse to listen again. Again, you can find that at civics101quiz.com.
Hannah McCarthy: We're back. This is Civics 101. And we're talking about the self incrimination clause of the Fifth Amendment. And we were just discussing the fact that, according to Tracey Macklin, 80% of people waive their Fifth Amendment rights to not self incriminate, meaning they decide to speak with police while they are under suspicion of a crime without an attorney present. Nick, what has the Supreme Court said about what law enforcement can or cannot do to get you to waive those rights?
Nick Capodice: Well, one interpretation comes from a case called Berghuis v Thompkins. In 2010.
Tracey Maclin: Thompkins was arrested for murder. He was given his Miranda warnings. He was also told that he could invoke his rights at any time. And he was then asked to decide, as some suspects are, to sign a form acknowledging that he had been given his rights. He refused to sign the form. Okay. But he didn't invoke. He never said, I don't want to speak with you or I want to remain silent. I want to see my word. He just sat there silent, and he sat there silently for 2 hours and 45 minutes. At one point, he may have commented that the chair was uncomfortable and he was asked if he wanted a peppermint or something along those lines, and he said no.
Hannah McCarthy: So he didn't sign the form saying that he had been read his rights, but he also did not talk to police.
Nick Capodice: Right. And since we're talking about laws here, we're going to be really specific for the record. There is some disagreement on exactly how long he was interrogated for. Case law says 3 hours. You'll hear Tracey refer to it as 2 hours, 45 minutes. And in the oral arguments in front of the Supreme Court, justices say two and a quarter hours.
Tracey Maclin: Finally, after 2 hours and 45 minutes, he was asked by one of the detectives whether he believed in God, which Thompkins replied that he did. And then he was asked. And at this point, as I started welling up a little bit in tears, he asked, Do you pray to God? And he said, Yes, I do. And then the detective asked him, Do you pray to God to forgive you for shooting down that boy? And Thompkins answered that he did, and he looked away. And then there was no more no more comment statements from Thompkins. The state took those statements. Do you believe in God? Do you pray to God? And then, of course, the final statement, which was the one that was terminated, do you pray to God for forgiveness for shooting down that boy? That was incriminating. And they used that at his trial and he was convicted of murder. And Thompkins said, well, I had asserted my right to remain silent by being silent for 2 hours and 45 minutes. So you shouldn't be allowed to use that statement. And additionally, Thompkins argued that they never got a waiver. They never got a waiver from me after giving me my Miranda rights. Now, the Supreme Court had two responses. First, they said, no, you didn't remain silent.
Clip: Do we have any case that says that two and a quarter hours is too long? No. And in fact, there can't be a waiver after two and a quarter hours.
Clip: No, there's no case.
Clip: And therefore, there's no clearly established Supreme Court law that two and a quarter hours is too long.
Hannah McCarthy: Okay. But what about the waiver? He never signed the waiver that says, yes, I was read my rights.
Tracey Maclin: And then with respect to the question about the waiver, now, again, police detectives had been trained that in order to get a statement from a guy, you've got to give them a word of warnings and also get a waiver. And that is what the Supreme Court had said back in 1966 when they decided Miranda, and that was how much of the lower court approached this issue. Well, the Supreme Court said that the statement, his response, yes, would ask, do you pray to God for forgiveness for shooting down that boy, that act as both an incriminating statement and the waiver in and of itself? And so by answering that question in the affirmative, not only do you incriminate yourself, but you also waived your rights. Now, Thompkins was a 5-4 decision, some would say. I would say that it turns the Fifth Amendment generally and Miranda Doctrine specifically on its head, because Thompkins remained silent for 2 hours and 45 minutes. But the upshot of Thompkins, as far as the Supreme Court is concerned, if you want to remain silent, you better speak, which is a little counterintuitive, particularly to people who don't understand the law and aren't able to do the mental gymnastics that lawyers and law professors do.
Hannah McCarthy: So what I'm getting from this is that at any point when you are in custody, you could waive your rights even implicitly. And that law enforcement really wants you to do that and can sit there with you or talk to you or ask you questions to try to get you to waive them by opening up.
Tracey Maclin: And certainly the police officers are not going to act in your best interests, police officers generally, and certainly detectives, because there's mostly detectives who are doing these interrogations. Their job is to get a statement from you. They may pretend and act as if, well, we're there for your best interest. No, they're not. They are there to get a statement from you or to get you to incriminate yourself, whether you're guilty or innocent.
Nick Capodice: And law enforcement has been given a lot of latitude on how they might go about getting statements from people in custody.
Hannah McCarthy: So is law enforcement allowed to lie to you?
Nick Capodice: Again, this has been interpreted differently in different cases. But essentially, yes. Yes, they are.
Jorge Camacho: There's a lot of criticism of police interrogation techniques and, you know, things like the good cop bad cop routine and whether or not those tactics are coercive to the point of overcoming someone's will and making their statement involuntary under the Fifth Amendment. One of the tactics that Supreme Court has recognized as being permissible, as what they allow to happen, is lying. Police officers are allowed to lie. They're allowed to within within certain bounds, but very few bounds. They're allowed to play on your sympathies. They're allowed to kind of use your silence against you in a psychologically manipulative way. So, for example, let's say I'm a police interrogator and I have a suspect in front of me who has not answered a single question that I'm asking despite my attempts to get them to respond. And I say, hey, listen, I understand that you may not want to talk to me right now, but put yourself in my position right now. Let's say you're the interrogator and you know that I know something about this crime, but I'm just not telling you. What does that make me look like to you? That makes me look suspicious, right? So you understand if I see you as suspicious. Right. But let's say you didn't have anything to do with this, then there's no harm in you. Just answering my questions, and then person responds. And once you get that rapport going, once you get that correspondence going, it can be very, very hard to resist the interrogation tactics of a trained police interrogator. And the Supreme Court has said, well, they didn't do anything to overcome your will. Yes, they may have convinced you to start talking. And yes, while you started talking, you may have made an incriminating statement. But that's not against the Constitution. The Constitution doesn't prohibit that. That can make it really, really, really difficult for you as the person being subjected to interrogation. You can make it difficult for you to know whether or not what the police is doing is proper or improper, whether or not your rights are being violated or respected. And again, for courts, it's oftentimes no clearer for them either.
Nick Capodice: Not to mention the fact that a lot of people are not necessarily legal experts. And aside from reading you your Miranda rights. Law enforcement isn't required to clarify what is and what is not within the bounds of those rights. Furthermore, requesting to speak to an attorney isn't as simple and straightforward as it might seem.
Tracey Maclin: Well, you have a right to consult with a lawyer after you've been under arrest. But if you ask for a lawyer. Most police departments are not going to give you a lawyer because they don't have counsel standing by, sitting in the back room waiting to advise people. So if you if you're arrested, you're given your Miranda warnings, you ask for a lawyer, they're going to shut it down. And you're going to eventually get to be in front of a judge and the judge is going to appoint you a lawyer if you're indigent.
Nick Capodice: And if you can afford a lawyer, at least in the eyes of the court, you still need to find one and pay for their services.
Hannah McCarthy: To that point on TV and in movies, we see it all the time when someone is arrested and they say, I want to speak to an attorney. And law enforcement might say something like, Why do you need a lawyer if you're innocent? There's this idea that by not speaking to law enforcement, by asking for a lawyer, it makes it look like you're guilty. Can your choice to remain silent or your request for a lawyer be used against you in a court?
Nick Capodice: Well, I got a case just about this. Hannah. Griffin v, California, 1965. The Supreme Court addressed the question of whether the fact that you invoked your Fifth Amendment rights after being arrested can be used against you in trial.
Tracey Maclin: Griffin was a case in which Mr. Griffin was tried for murder. He was the last person to have seen the victim, and Griffin didn't testify. And so the prosecution or the prosecutor said to the jury, well, we don't know what happened to the victim, but we do know that the last person to see the victim alive was the defendant, Mr. Griffin. But Mr. Griffin won't take the stand and tell us what he knows about the victim and what may or may not have happened. And so you should draw an adverse inference. In other words, you should infer some degree of guilt by the fact that Griffin refused to tell us what he knows. Supreme Court said that's compulsion. That's compulsion within the meaning of the Fifth Amendment because it's kind of damned if he does, damned if he doesn't. Because if Griffin were to take the stand, he would be forced to answer questions on the cross-examination, which probably would have incriminated. But if he chooses not to take the stand, if he chooses to rely on the right that the text of the Fifth Amendment gives him, he still being incriminated is still going to be used against him. In this case, the incriminating evidence is the prosecution asking the jury to draw an adverse inference, in other words, to infer his guilt. That's substantive evidence of guilt. So it's damned if he do, damned if he doesn't. Supreme Court said in Griffin that that was compulsion within the meaning of the Fifth Amendment.
Nick Capodice: However, this doesn't necessarily apply if you haven't yet been taken into custody. For example, the police asked to speak with you about a crime as a witness or to gather more information and you volunteer to talk with them. This much more recent interpretation is found in Salinas, v, Texas, from 2013, where law enforcement suspected that a man named Salinas had committed a murder, but they didn't have enough evidence to arrest him. So they asked him to just come down to the station to have a chat. And in that instance, there wasn't a clear compulsion because he came voluntarily. And by the way, Tracey says, you don't have to do this and it's wise not to do so.
Tracey Maclin: Foolishly, Salinas went down to the police station. He went there voluntarily. He wasn't it wasn't under arrest. He wasn't being detained. He wasn't told he must come down to the police station. But he went there voluntarily and they peppered him with a few questions that weren't related to the murder. And then one of the detectives said to them, well, if we take that gun that your father gave us and we run a ballistics test on it, will it show that this was the gun, this was the weapon that was used to kill the victims? At that point, Salinas shut up. He looked down and kind of shuffled his seat, but he refused to answer the question. And the police let him go. He was eventually tried for murder. And at the first trial, the jury hung. At the second trial, the prosecution did something that they didn't do at the first trial. And what they did was they put the officer on the stand and they asked him about Salinas' reaction to the question with respect to the ballistics test. And the officer said, well, he wouldn't answer that question. He remained silent. And then the prosecutor, she argued to the jury during her summation that an innocent person would have answered that question. And an innocent person would have said, Well, of course not that the ballistic test is not going to come back and say that this was a rifle. I didn't do it. Well, this time Salinas was convicted and he appealed his case to the Supreme Court of the United States. And the question was, can a prosecutor use a person's silence as substantive evidence of guilt? It's kind of similar to the question we discussed earlier with Griffin when we we talked about whether or not a prosecutor should be able to tell a jury that a person's refusal to testify is incriminating. The Supreme Court decided, well, we're not going to decide that question because we think Salinas never invoked his right to remain silent. Simply remaining silent is not the same thing as invoking the Fifth Amendment.
Clip: You're giving this Miranda not Miranda custody. Not custody. Gray area. That's what you're arguing. You want a gray area opinion to be written? No, I don't want it.
Tracey Maclin: And the Supreme Court upheld the conviction that said Salinas had never invoked his right. So, no, his Fifth Amendment rights weren't violated when the prosecutor did what she did. And the detective testified as to how I described it.
Hannah McCarthy: To clarify, because I want to be sure I completely understand. It is not really clear when your Fifth Amendment rights come into play, when you have not been arrested or charged with a crime.
Nick Capodice: Right. And Tracey says in those situations, you do not have to talk to law enforcement and you probably shouldn't because there's a really good chance you may end up incriminating yourself. And if you do decide to speak with them voluntarily and then suddenly stop, that could potentially be presented in trial later on as a presumption of guilt.
Jorge Camacho: The takeaway largely has been if you're going to assert a right, you have to do so clearly and unequivocally. The court is much more hesitant to accept the notion that you can implicitly exercise a right. But again, there are some justices who think that it's the correct view and others who think that it's incorrect and that the court should recognize the ability to implicitly exercise your constitutional rights. These are questions that courts struggle with. These are questions that police officers struggle with. These are questions that lawmakers struggle with because it's really hard to know in the moment when that line is where you've crossed into Miranda territory or where you're still kind of in pre Miranda territory. Because what the court has effectively said is that when you are examining the conduct of police officers and when you're examining, for example, the voluntariness of a statement, you can consider every circumstance. It's called the totality of the circumstances test, which means consider everything and then try to strike a balance one way or another. That tells you either, yes, this is on the up and up or no, this isn't. And the statement has to be excluded. Clearly not a scientific test, not one that even reasonable, rational, intelligent people can apply and uniformly arrive at the same conclusion for. And it's the best that we have so far, or at least the best that the Supreme Court has been able to come up with so far.
Hannah McCarthy: What about if you're asked or subpoenaed by the government to testify in an investigation that is not directly about whether or not you've committed a crime? For example, congressional investigations where government officials in this case, Congress people are questioning people but aren't able to file criminal charges themselves.
Clip: Do you plan to continue to assert your Fifth Amendment rights? Is that your plan? Is that your plan?
Clip: Advice of counsel. I respectfully refuse to answer and assert my Fifth Amendment privilege.
Jorge Camacho: Going back to the text of the Fifth Amendment right when we when we focus on the part that talks about a criminal case, that protection applies or can apply whenever the person interrogating you or questioning you has at least the potential to commence some type of criminal case against you. So that's an instance where you don't have a police officer in front of you. You have a congressperson or a congressional staffer asking you questions.
Nick Capodice: It's true that throughout history this clause has resisted a clear interpretation, in part because the clause by nature is about the dynamic between individual liberty and law and order.
Hannah McCarthy: And what's at stake here when we're talking about how civilians experience the law is freedom. The consequence of self incrimination could be incarceration and in some cases execution.
Jorge Camacho: Yeah, what I think a lot about is the tension that's inherent in the Fifth Amendment, the fact that we recognize that police interrogations are really just interrogations by the government generally are fraught with power imbalances and that we're interested in protecting against that power imbalance. We want David to be well equipped against Goliath, but at the same time, we don't want to hamstring Goliath from doing the job that Goliath has to do. So, for example, yes, we are aware that, for example, police officers can be abusive in their power, that they can beat suspects, that they can psychologically manipulate suspects. And we may not like that and we may protect people against that for good reason. At the same time, the police perform of an important function. They investigate crimes and they are tasked with finding offenders and bringing them to justice. So what's the balance that we're willing to accept between protecting someone's rights while also giving the police enough leeway to do the job that we've put on their shoulders to do? That's an issue that we've struggled with for a long time. We continue to struggle whenever the political winds change, either from being ardently pro-reform to ardently pro law enforcement. You can expect similar changes in how we interpret these cases. And you can expect the Supreme Court to shift winds as well. What that means is that we're probably no closer to finding a conclusive answer on this question now than we were 100 years ago. But that's not to say that we won't at some point find a solution.
Nick Capodice: As for where that leaves us now, Tracey offered this.
Tracey Maclin: Well, when you've come under the suspicion of law enforcement, the police do not have your best interest in mind. The only person that has your best interest in mind besides yourself is your attorney. Defendants, suspects, they are not required to help the government make its case. You have the right not to help the government. You can help the government if you wish, and that's fine. But standing on your right to remain silent, there's nothing wrong with that. And that shouldn't be seen as a bad thing. It's enshrined in the Constitution.