You Have the Right to Remain Silent But You Must Claim It.

posted by on Tuesday, June 18, 2013

"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 an attorney.  If you cannot afford an attorney, one will be appointed to you. You may exercise these rights at any time."  This phrase, or similar versions to it are commonly referred to as your "Miranda Rights."  They are meant to explain a persons right against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution.

The Fifth Amendment to the United States Constitution provides: "No person ... shall be compelled in any criminal case to be a witness against himself..."  This right exists in any circumstance where a persons answer to a question may have the tendency to incriminate them or lead to the discovery of incriminating evidence.  According to the United States Supreme Court, this privilege "protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence."  The Iowa Supreme Court has further explained that the right is "properly asserted where the answer might furnish a link in the chain of evidence needed to prosecute a crime."

Many people faced with questioning by law enforcement or other individuals such as employers or school officials, often hesitate to come out and "plead the 5th."  Their thought process is that if I "plead the 5th" the person will know that I am hiding something and will assume I have done what they have accused me of doing.  Based upon the United States Supreme Court's recent decision in Salinas v. Texas, "pleading the 5th" is precisely what a person must do if they are to prevent their silence from being used against them."

In Salinas the defendant voluntarily submitted to questioning by law enforcement.  He was not advised of his Miranda rights since it was a voluntary questioning and he was free to leave at any time.  He voluntarily answered a number of questions about a homicide but then hesitated when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match his shotgun.  He was ultimately charged and convicted of Homicide based in part upon his reaction to the officers questioning which was used against him in his trial.  The United States Supreme Court, in a narrow 5 to 4 decision, concluded that because Salinas did not clearly and unequivocally invoke his constitutional right to remain silent (plead the 5th) in response to the question, his action was not an invocation of a constitutional right and consequently could be used against him.  Justice Alito's quote best sums up the Court's opinion: "A witness who desires the protection of the privilege must claim it."

The lesson provided by the Salinas decision is quite simple.  If a person wants to exercise their constitutional right to remain silent, they must be clear and unequivocal about it, otherwise they run the chance that their response to a question may be used against them.  A good example of a clear an unequivocal invocation of a constitutional right against self-incrimination can be found in the recent Iowa Supreme Court decision of State v. Washington, in which the defendant "plead the 5th" when the sentencing judge asked if a random urine test would be positive for drugs.  In response to that question, Washington's lawyer, clearly and unequivocally invoked his right against self-incrimination on his behalf, and the Iowa Supreme Court concluded that the defendant properly invoked his right to remain silent and the sentencing judge improperly punished him for exercising that right.

It has been said that the right to remain silent is probably the most commonly known right in our country but is the most difficult right for people to actually exercise.  The United States Supreme Court's decision has made this ever more apparent.  This is why the attorneys at GRL Law have created the Iowa Driver's Rights Card and Oh Crap App., to educate and assist citizens with knowing and invoking their constitutional rights when faced with a law enforcement investigation.  As it stands today, the law still prohibits the government from using a persons invocation of a constitutional right against them if they are later charged with a criminal offense.  However, the right must be clearly and unequivocally invoked.  You cant be shy, passive or hesitant when invoking the right.  Come out and say it: "I plead the 5th".  This is important because while the police officer may think he knows why you are invoking your right to remain silent, if charges are filed, your invocation of your right cannot be used against you in any of the court proceedings.  Your failure to invoke your rights however can and will be used against you.

Know your rights; Exercise your rights; Preserve your freedom!

  1. miranda rights
  2. plead the 5th
  3. right to an attorney
  4. right to remain silent
  5. self incrimination