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.

But what about if you are not arrested but you are questioned by the police? Here is where it could get tricky. A person who is being detained and questioned does not enjoy a self-executing Fifth Amendment right and the police are not required to give a Miranda warning. The right to remain silent has to be invoked. In other words, the detainee must clearly state to the questioning officer that he or she chooses to remain silent. Often people are afraid to invoke this right because they think they will make the officer angry. Whether the officer gets angry or not, the officer knows you have this right and cannot use it against you if you invoke it.  Sometimes the detainee is innocent and wants cooperate with the officer, but it is still a good idea to refuse to answer law enforcement’s questions. It happens more than you might imagine that innocent people implicate themselves by what they believe are exculpatory statements.

Here’s an example of how this right operates:

Brandon fits the profile of a burglary suspect. Officers spot him driving a vehicle that also matches the profile and seeing that Brandon looks like the suspect according to descriptions, the officers stop him for questioning. Upon contact with Brandon at his vehicle, the officers casually question him. Brandon gets nervous and voluntarily divulges information that leads the police to believe he is the suspect, whereupon they arrest him. Brandon’s Fifth Amendment right was not violated by the questioning while he was detained, and his voluntarily divulged information can and will be used against him at trial. The officers were not obligated to inform Brandon of his right to remain silent while he was out-of-custody, i.e., not under arrest.

Brandon should have provided the officers with identification upon their request and then politely invoked his right to remain silent. Even then, the officers may continue to question Brandon and, in that case, he should continue to invoke his right to remain silent. At some point this could be construed as an in-custody interrogation, even though Brandon is not under arrest, thereby triggering an exception to the Miranda requirement. Although Miranda is usually required only upon arrest, the police must inform persons who are not under arrest but subject to a custodial interrogation of their right to remain silent. Obviously, whether and when questioning becomes a “custodial interrogation” is subject to interpretation and often is left to the judge to decide. Brandon would be wise to ask the officers if he is under arrest or free to go. That forces the officers to either arrest Brandon and read his Miranda warning or to let him go on his merry way.

If Brandon is arrested, he continues to have the right to remain silent and at the point of arrest, he must be advised of that right. If the officers fail to properly advise Brandon, it could be grounds for a motion to suppress and dismissal of any charge that follows the arrest. Likewise, incriminating statements made during a custodial questioning without a Miranda warning may be grounds for a motion to suppress.

What happens if Brandon is arrested and while in custody at the police station, he is questioned again by the officers all the while maintaining his silence, but after several hours, the police casually ask him a few more questions and he blurts out a couple of statements?  Just because he invoked his right to remain silent before, does not mean that right is continuing. Once he breaks his silence, his invocation of the right may no longer be operative. It then becomes an issue of the voluntariness of any statements he makes. Did he make the statement voluntarily or was it coerced? The fact that he was in custody and had previously invoked his right to silence does not make his confession involuntary. Unless there if evidence that the police coerced the confession, Brandon’s rights may not have been violated. If Brandon’s criminal defense attorney challenges the admissibility of the confession on the grounds that it was coerced, it becomes a question of fact that the judge will determine.

This discussion only touches a few of the many opportunities for challenging an arrest and/or incriminating statements based on Fifth Amendment grounds. These grounds often provide the first line of defense. If an arrest, statements, or a confession are found to violate a defendant’s Fifth Amendment right, the charge (or charges) are often dismissed upon a successful motion to suppress.

Orange County criminal defense attorney William Weinberg will carefully review the facts of your case for any defense strategies, including a motion to suppress. He offers a free consultation where he can advise you of your options and honestly assess your case. You may contact him at his Irvine office by calling 949-474-8008 or by emailing him at bill@williamweinberg.com.