Should I Speak To The Police?: UnderstandingThe Privilege Against Self-Incrimination

“I plead the Fifth!” For all you courtroom drama enthusiasts, this a universally known phrase. However, what does this phrase actually mean? The Fifth Amendment to the United States Constitution list five rights that protect you from the government abusing its prosecutorial powers. Of these five rights, your right against self-incrimination (A.K.A your right to remain silent) is arguably the most important right you have.

Your right to remain silent only applies when you are subject to custodial police interrogation. The Supreme Court of the United States in Miranda v. Arizona defined custodial police interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” In other words, you are in custody when you are not free to leave. Once you are no longer free to leave, law enforcement must advise you of your Miranda rights before you may be questioned (i.e., you have the right to remain silent and to have an attorney present for questioning). Once these two elements are met, you may exercise your right to remain silent.

Once in custody, you must affirmatively assert your right to remain silent to end police questioning. The Louisiana Supreme Court has held that Miranda does not require one to exercise his right to remain silent by any particular phrasing. If one “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” State v. Taylor, 2001-1638 (La. 1/14/03), 838 So.2d 729, 739. However, mere silence is not enough. You must unambiguously assert your right to remain silent (e.g. “I no longer wish to answer any questions and/or speak to you”). Once you affirmatively assert your right, law enforcement must then “scrupulously honor” your right to remain silent. This doesn’t mean, however, that any incriminating statement you make after invoking your right cannot be used against you. If you re-engage law enforcement, your actions may constitute a waiver of your rights, and what you say afterwards may be used against you. Your best bet is to inform law enforcement that you do not wish to speak to them without an attorney present and that you choose to remain silent, and to not reinitiate conversation with law enforcement after invoking your right.

All-in-all, when you are in custody, providing any information to law enforcement is potentially harmful to your case. Always inform law enforcement that you will not speak to them without an attorney present and that you choose to remain silent. Knowing your rights and how to invoke them will ultimately save you.

Written By: Cameron J. Pontiff