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Mississippi Lawyer Blog

Understanding the 5th Amendment

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The History of the Fifth Amendment

In 17th century England, citizens were often tortured or coerced into making a confession regarding their religious affiliation, and were even considered guilty if they refused to talk. Puritans who fled such religious persecution, brought the idea to America that all citizens had the right to remain silent in order to keep from giving the prosecution evidence against them, and the idea eventually became codified in our Bill of Rights.

Whether you have studied the law or not, it is very likely you have heard the term “pleading the Fifth.” Yet despite the fact that most Americans are aware of their right to decline to answer police questions—whether in custody or not, or in a court of law—far too often, this right is ignored, and the consequences can be extremely serious. The Fifth Amendment provides that no person will be compelled in a criminal case to be a witness against himself. In other words, you are not required to provide evidence which will assist the government in your prosecution.

When Can Fifth Amendment Rights Be Invoked?

The privilege of self-incrimination, both in a civil proceeding (if answers to questions in the civil proceeding could be later used in a criminal prosecution) and a criminal proceeding, can be asserted in a state or federal court, in trials, depositions, investigatory proceedings and administrative law proceedings. A person is not allowed, during a court proceeding, to hide behind the Fifth Amendment for questions which have nothing to do with the actual crime. In other words, if you are asked your name, you cannot plead the Fifth Amendment, because the answer to that question cannot incriminate you. Only when an answer (or the evidence that answer might lead to) could incriminate you are you allowed to invoke Fifth Amendment privileges.

Can Your Fifth Amendment Privileges Be Waived?

You have the right to waive your Fifth Amendment rights—although there are virtually no circumstances when you should do so—but more importantly, if you have invoked your right to remain silent, then later selectively answer questions, a judge can rule those later answers effectively waived your Fifth Amendment rights. However, if a judge does waive your Fifth Amendment rights, the waiver extends only to the current proceedings.

Is There Ever a Time You Should Not Invoke Your Right to Remain Silent?

There are certain times when invoking your right to remain silent might not be the best idea. In some instances, claiming the Fifth Amendment in a civil case might allow the prosecution to advise jurors they can conclude an “adverse inference” against a witness to invokes his or her right to remain silent. If a person invokes their right to remain silent prior to a trial, that person cannot, later, offer testimony on the issue. Unfortunately, public perception of a person who invokes his or her right to remain silent is that the person is probably guilty, so this this could potentially affect the outcome of a trial in an adverse manner. If a witness is given immunity, and told that the testimony will not later be used against the witness, then invokes Fifth Amendment privilege, that witness can be held in contempt, and even jailed.

The Fifth Amendment—the Basis of Miranda

The Fifth Amendment is the primary basis for the landmark 1966 United States Supreme Court Decision, Miranda v. Arizona. The Miranda decision allows a person being held in police custody to invoke his or her right to remain silent, and refuse to answer any questions which could be incriminating. Essentially, Miranda allows that the questioning must end once the suspect has invoked his or her right to remain silent until the suspect has been able to speak to an attorney, and that the suspect has the right to refuse to answer police questions. Not only do you have the right to speak to an attorney before being questioned, you also have the right to have the attorney present during the questioning. These are rights you must take seriously. If the police want to question you, immediately call a knowledgeable criminal defense attorney. If you are taken into custody unexpectedly, politely invoke your right to remain silent, then immediately call an experienced criminal defense attorney—your future could rely on it.

Contact Our Jackson Criminal Defense Lawyers

If you have been charged with a crime or an attempted crime in Jackson, Hattiesburg, Meridian, or anywhere in the State of Mississippi, the best thing you can do is to contact an experienced Mississippi criminal defense attorney who will protect your rights to a fair trial and safeguard your future.

At Coxwell & Associates, PLLC, our attorneys believe that everyone is innocent until proven guilty and we work tirelessly to ensure that your rights are protected throughout the process. Contact Coxwell & Associates today at 1-601-948-1600 or 1-877-231-1600.

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Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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