Our Fifth Amendment Right Against Self Incrimination - An Unfairly Misunderstood Right Explained

How many times have you heard, If he did not do anything, then he is got nothing to hide! She is taking the fifth so she must be guilty. Each time I hear statements like these I cringe, and we appear to be bombarded with this nonsense on a regular basis from as far away as Hollywood, to as close as a local radio talk show program, its host, regular callers and those pesky yet loyal FTLTers. The reality is, the Fifth Amendment to the United States Constitution may well be the most powerful defense a person has available and there is absolutely no shame in flexing that muscle.

Our Fifth Amendment, along with nine other amendments, collectively, the Bill of Rights was ratified on December 15, 1791. Its roots run deep, finding connections with the Magna Carter, signed in 1215.

Specifically with regard to our right to keep silent it states that no one shall be compelled in any criminal case to be a witness against himself and believe it or not, the right was designed to protect INNOCENT people. Justice Robert Jackson, a former prosecutor, General Counsel for the Bureau of Internal Revenue, the Securities and Exchange Commission, Assistant US Attorney General and he was even the chief prosecutor for the Nuremburg Trials, said while sitting as a Justice of the United States Supreme Court any lawyer worth his salt will tell a suspect in no uncertain terms to make no statements to the police under any circumstances.

The truth is, we have no way of knowing whether any statement made to the police might at some point be looked upon by a prosecutor as relevant in some other proceeding. Further to the point, it is my experience that clients tend to get somwhat exuberant in professing their innocence to the police and that such exuberance leads to flat out lying. That is dangerous. Just ask Jeffrey Scott Hornoff. As you know he was a Warwick, RI police officer who was found guilty of murder. He spent six years in prison for a crime he did not commit. Had it not been for the murderers guilty conscience, Mr. Hornoff might still be in prison. The point is that Mr. Hornoff lied to the police during their investigation of a murder making it likely that he was convicted based upon his lie rather than the evidence. Had he just remained silent, the prosecution could not have damaged his credibility with his own contradictory statements. After all, if he lied about his relationship with the victim, then the jury surely could have seen him capable of lying about committing murder!

Moreover, our Constitution makes it difficult to convict someone of a crime. It should! We live in a free society and we value our freedom so much that we have developed a system that places 100% of the burden on the prosecution when the state tries to take away that freedom. Why make it easy? In any event, prosecuting someone takes time. Why rush into an admission by speaking with the police? There is plenty of time for that. That time also provides the accused with the opportunity to speak with counsel. Only then, should a person make an admission and certainly only in the event that the evidence makes a conviction likely.

Remember if you have been arrested remain silent! You may find it difficult to do so because the police are very good at cajoling suspects into making statements, and quite frankly the innocent suspect will undoubtedly want to convince the police out of making an arrest or filing charges. When was the last time you heard of someone who was able to convince the police not to arrest the suspect based solely on the suspects own protestations. Never.

I hope this essay has been helpful.


RI Criminal Defense Lawyer
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