The Fifth Amendment right against self-incrimination is among one of our most important and well-known rights. That clause states: “No person . . . shall be compelled in any criminal case to be a witness against himself.” Sounds simple enough but understanding how the courts have interpreted this right over the 225+ years since it was ratified is not simple. Among one of the most famous interpretations of this right was handed down by the United States Supreme Court in 1966 in the case Miranda v. Arizona.
We have all heard of the “Miranda warning” where an individual is warned that he or she has the right to remain silent and that any statement made can and will be used in a court of law. But did you know that Miranda rights are only applied and operative upon arrest, not upon detention or questioning? Upon arrest, and only upon arrest (with a few exception), the Supreme Court ruled that a suspect must be advised of his or her Fifth Amendment rights. This warning also includes notice that the arrestee has the right to talk to an attorney before answering any questions. Without being advised of these rights, the arrestee may have grounds to challenge any subsequent charge stemming from the arrest by a motion to suppress.
Even with this warning, many suspects go on to incriminate themselves, even by statements they believe are innocent. If you are ever arrested, don’t make this mistake! Even if you are innocent. Keep your mouth shut when the police question you after an arrest except to ask for permission to contact a criminal defense attorney.