"Pleading the Fifth" and Miranda Warnings

Jennifer E. King for lawyers.com

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"Pleading the Fifth" and Miranda Warnings:
Separating Fact From Fiction

When former Ohio police officer Bobby Cutts Jr. was charged with murdering his pregnant girlfriend and their unborn child, few people probably expected him to take the stand at his own trial. When he did take the stand to testify, he shocked many with his tearful confession detailing the murder. American courtwatchers are accustomed to the fact that those accused of crimes rarely take the stand in their own defense, or if they do take the stand, they frequently "plead the Fifth," invoking the Fifth Amendment right that allows criminal suspects to remain silent to avoid incriminating themselves.

If you've watched "Cops" or any other detective series, you've heard a Miranda warning ("You have the right to remain silent!") and know that defendants can "plead the fifth" . But do you really know what those terms mean, and how they're used in criminal investigations?

The Fifth Amendment of the U.S. Constitution says that a person who is suspected of committing a crime can remain silent during questioning to avoid self-incrimination. In other words, if, in the course of questioning (by law enforcement or in court), the suspect's truthful answers would prove that they committed the crime, then the suspect is not required to answer those questions. In addition, the Fifth Amendment says that a person who is suspected of committing a crime has the right to have an attorney present while he or she is being questioned.

Although the Fifth Amendment applies to everyone in the United States, it is wrong to automatically assume that everyone is familiar with their rights under the Fifth Amendment. Therefore, police will routinely read criminal suspects what is called a Miranda warning. The exact words of the Miranda warning will vary from jurisdiction to jurisdiction, but usually include: "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 have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you."

After being read the Miranda warning, a suspect will usually then be asked if he understands the warning. If the suspect doesn't understand the warning, police are required to explain or translate it for the suspect.

Common Fifth Amendment Misconceptions

Although most people have passing familiarity with the Fifth Amendment and their right to remain silent, there are many misconceptions about how the Fifth Amendment works.

False: Police must read you the Miranda warning when they arrest you.
True: You won't automatically be read the Miranda warning if you are arrested, nor do you need to be arrested before being read a Miranda warning. If police arrest you, but don't expect to question you (usually because they already have enough evidence to prove you committed a crime), you may not be read the warning. Similarly, if police ask you to voluntarily come in for questioning, but don't have sufficient evidence to arrest you, you'll be read the Miranda warning before being questioned.

False: If you were questioned without being read the Miranda warning, and are then charged with a crime, the charges will automatically be dropped, or the court will automatically find you not guilty.
True: It's wrong to think that no Miranda warning will get you off the hook. Prosecutors may still have sufficient other evidence to convict you of a crime, even if they ignore the evidence that you provided under questioning.

False: Anyone who "pleads the Fifth" must be guilty of something.
True: If police question a suspect, or have arrested them for a crime, then the police have some evidence that leads them to believe the person has committed a crime. But, in fact, there are corrupt people in law enforcement, and innocent people have been convicted of crimes they didn't commit. Innocent people who are worried about having their words twisted and used against them may choose to "plead the Fifth" when being questioned about a crime they did not commit.

False: Police can't ask you any questions until they read you the Miranda warning.
True: Police can ask you basic identifying information, such as your name, address and date of birth, without having read you a Miranda warning. In addition, while the police have the right to ask you questions and you have the right to politely decline to answer those questions, the police do have other ways of obtaining evidence (such as a search warrant), and may still find reason to arrest you.

False: You can't change your mind if you waive your rights under the Fifth Amendment, answer investigator's questions or allow yourself to be questioned without an attorney present.
True: Just because you waive your rights and agree to be questioned does not mean you must answer all questions. At any time you may change your mind, and choose to remain silent. In that case, the police must stop questioning you. Likewise, if you initially decide to talk to police without an attorney present, then change your mind, police must stop questioning you while waiting for your attorney to arrive, and then give you the opportunity to confer with your attorney.