5th Amendment Rights

We hear it in movies and on TV all the times. "you have the right to remain silent anything you say will be used against you"

Under the Fifth Amendment of the U.S. Constitution, you have the right to remain silent and do not have to answer questions from law enforcement, whether or not you are under arrest. To invoke this right, you must state clearly that you are exercising it, rather than just staying silent.  Attorney John Calcagni discusses this topic in great detail. 

https://www.calcagnilaw.com/

John L. Calcagni, III, is a prominent Rhode Island criminal defense attorney with extensive experience as a former military prosecutor (JAG Corps) and Special Assistant U.S. Attorney, specializing in federal, state, and military cases, including violent crimes, drug offenses, sex crimes, and white-collar cases, leveraging his prosecution background for defense in state and federal courts. He holds a Juris Doctor from Roger Williams University Law School, is admitted to practice in multiple states and federal courts, including the U.S. Supreme Court, and is recognized as a SuperLawyer. 

Transcript

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SPEAKER_00 0:13

What's your emergency? Metaphor. Has the jury reached a verdict? I'm John Calcackney, New England's premier criminal defense lawyer. And you're listening to my exclusive podcast. Not guilty, where all things criminal defense are explained and discussed. Thanks for listening. And stay tuned.

SPEAKER_03 0:58

Not guilty.

SPEAKER_01 1:05

I'm Attorney John Kelcagney, Rhode Island-based criminal defense lawyer, and welcome to the next edition of my podcast. Today I'd like to use my time to generally speak about the Fifth Amendment. What do you say?

SPEAKER_02 1:19

I know a little about the Fifth Amendment, but I hear it in movies and TV shows all the time. So I'm looking to get educated.

SPEAKER_01 1:24

All right. Well, listen, I'm going to focus my uh comments on the Fifth Amendment to the United States Constitution, but understand that in addition to the federal constitution, each state has its own constitution, and it may have a legal provision in the state constitution that's very similar to that in the federal. Rhode Island has Rhode Island State Constitution. It has provisions very similar to that mirror that of the federal constitution. The Massachusetts has its own constitution as well. It's called the Massachusetts Declaration of Rights. And again, it too has similarities that mirror the federal constitution. The Fifth Amendment to the Federal Constitution contains many different rights and provisions and benefits. But in the world of criminal law, the most common is that the Fifth Amendment provides that no person may be compelled to be a witness against himself or herself. And it's because of this that if you're, say, the defendant in a criminal case and you elect to go to trial, uh, the state can't require you to take the stand and testify because perhaps questions posed to you would lead to truthful answers that you were involved in criminal activity. You follow? So, in other words, if you committed a crime but you decide you want to elect your right to trial, nobody can force you to get up there and either deny the allegations or admit the allegations. You have a Fifth Amendment right to remain silent. And you we do see this oftentimes in television shows of the legal genre, in movies, etc. And we typically see it come up in the context of what's known as the Miranda rights warnings. There's an old United States Supreme Court case, uh Miranda v. Arizona, that essentially uh codified uh these particular rights warnings, and which require police, when they have you in custody uh and they're about to question you, to notify you that you have the right to remain silent. That directly stems from the Fifth Amendment. Okay? Police go a little bit further, and they tell you anything you say can and will be used against you in a court of law. They're also supposed to tell you that you have the right to an attorney. And if you cannot afford an attorney, one will be provided to you. But, Fifth Amendment, anything you say can and will be used against you, you have the right to remain silent. That's what the Fifth Amendment is about, okay? Okay, so you should know that individuals accused of a crime, the defendant in the case, has an absolute Fifth Amendment to remain silent, both when in police custody, at any point in time that agents of the government want to ask him or her questions, and of course at trial. And at trial, if a defendant elects to remain silent, that is, not to testify, the jury is often told the defendant has an absolute right to remain silent. He or she elected not to testify in this case, you shall draw no negative inference from his or her silence. And that instruction is typically given by the judge to a jury at trial, you know, impressing upon them the importance of this legal right, which is a cornerstone of the justice system, the Fifth Amendment, right to remain silent. Make sense? It does. Now, the Fifth Amendment doesn't just apply to folks who have been accused of a crime, the defendant in the case. It could also apply to individuals who are suspected of having been involved in a crime, people who are under investigation, witnesses in a potential case. It could apply to just about anybody who, if being asked a question, and the truthful answer may tend to incriminate them, that is, subject them to potential prosecution. They have a Fifth Amendment right not to answer the question. And this comes up a lot. Clients retain us quite often when they know they're under investigation. You know, classic college student finds out through school officials that a fellow student has accused him of sexual assault. It turns into a police investigation. Clients come into the office, they retain us. We're very often sending notice of representation letters to police organizations telling them, you know, we represent the client, we understand there's an investigation ongoing. It doesn't just have to be sexual assault, it could be any type of crime. Um, and the client has a Fifth Amendment right not to speak with police, not to make any statements, not to answer any questions. And we often will try to invoke that right on the client's behalf in the letter. This can this often comes up in some other circumstances. This is classic. Let's suppose that there's a hit and run accident, whether it be a single vehicle hitting a business, hitting another car, uh well, single vehicle, single driver, hitting a parked car, hitting a pole, causing damage to a business, maybe even struck striking a pedestrian. Um, and maybe the accident is witnessed or captured on video. Police will have what? The vehicle itself, oftentimes the registration, and then be able to figure out who the car was registered to. So let's say it's you and it's your you know, Ford utility van, color black, and the plate is on camera. Now the police are knocking on your door because your car struck a pedestrian last night, or sideswiped two parked vehicles on the poorly plowed street in East Providence after the last storm. Police want to interview you because they want to know where you were last night, who was driving the car. There's damage to the side, they know it was the car, they see it in your driveway. They need to establish who the driver was. And if your wife was working at the salon and you didn't loan the car to anybody else, well, we know it was you, Mondo. So you tell the police, officer, I'm not obligated to answer your questions. I plead the fifth. Now, by you saying that, the cops are gonna think in their mind that you were the driver. But by you saying that, they have no evidence that you were the driver. So even if they choose to charge you, how are they gonna prove who is behind the wheel? The answer is they can't. And if you use your Fifth Amendment as a shield against the police in a circumstance like that, you may protect yourself from getting criminally charged. And if you unfortunately still get charged, having used the Fifth Amendment as a shield will certainly protect you from being convicted of a crime. Now, a lot of times the Fifth Amendment comes up in the context of a criminal case where you might have two parties that are culpable of some wrongdoing. Classic example domestic violence or an assault case where you have two parties that were involved in some sort of a physical altercation. Let's just suppose that boyfriend and girlfriend get in a fight. Girlfriend lashes out, pushes boyfriend, he pushes her back, knocks her to the ground. She calls the police first, cops are gonna show up, right? And they're gonna charge him. She's gonna say, he pushed me to the ground, he struck me, he's gonna get arrested. You know, that's just the bias of the system. The guy's gonna get picked up. He's gonna hire a lawyer, he's gonna tell his lawyer, well, she pushed me first. She pushed me. How come she didn't get charged? Huh? Hey man, welcome to reality. Because she's a woman, she accused you of domestic violence, and the police officers suffer from the same biases and prejudices that we all do. And the bias and prejudice says that in a circumstance like this, the male's typically the aggressor in a domestic case. So that's why you got charged. But let's say the girl was the aggressor, she didn't get charged. Well, now we get to trial. The only way to prove, the only way to prove its case is the state has to put the accuser on the witness stand, the girl, to say, my boyfriend pushed me to the ground to substantiate the assault charge. Well, a criminal defense lawyer may ask her, isn't it true you pushed him first, in order to maybe establish a self-defense claim? Well, she might lie and say, No, it's not, and then we're stuck with it. But maybe that witness who's under oath and is supposed to tell the truth might say, I plead the fifth, because she knows or should know that if she truthfully answers the question, yes, she pushed them first, she's now admitted herself to having committed a domestic assault. This comes up often in domestic cases, which is why so many of them often get dismissed, because the complaining witness doesn't want to cooperate or has a Fifth Amendment to remain silent, to not testify about this topic. And this is where the witness would become no longer available to offer the testimony the prosecution needs to make its case, prompting a dismissal. Make sense? It does, yes. Here's another example in a domestic. Maybe the guy never put his hands on the girl ever. Maybe she made up a whole lie. So having to come into court and talk about what she told the police already having been a lie, now she's under oath. She's in a uh lose-lose situation. Come into court and repeat what she told the police, she's lied under oath. Perjury. She's got a Fifth Amendment right to remain silent. Maybe uh she's gonna come into court and admit that what she told the police was a lie, providing a false statement. She subjects herself to further prosecution. Another Fifth Amendment circumstance to remain silent. So this comes up often. That's why it's important for people and their lawyers to understand how the Fifth Amendment works. People always ask, but you haven't today, Armando. Well, gee, can the prosecution overcome somebody's claim of the Fifth Amendment? Or is that it? They just say, okay, thanks for playing. Sorry to waste your time. You invoked your fifth, you can go home now. Well, the prosecution can overcome, and they can do that by granting the witness immunity. If a witness receives immunity, it's a legal promise and guarantee of no prosecution, as long as what you say on the witness stand is 100% true. This is how uh they built up a lot of mafia prosecutions over the years. They would get a member of the mafia family, give him or her immunity, a promise against criminal prosecution. That person would come into court, discuss all the criminal conduct that they engaged in with the defendants. So they get a pass because they have immunity, and the defendants got convicted. That happened in so many mafia cases in history, it's not even funny. But if the government gives a witness immunity, it overcomes the fifth, then the person is required to testify truthfully. If they don't, they can be held in contempt of court and prosecuted and punished for not testifying. If they testify falsely, they can be prosecuted for perjury. So the Fifth Amendment can be used as a shield to protect yourself against criminal uh liability if truthful answers to questions by law enforcement could expose you to prosecution, um, but it can also be overcome uh with immunity.

SPEAKER_02 13:38

And it sounds like it could save you in some cases if you like truly are um you know of no wrongdoing.

SPEAKER_01 13:46

That's right. And if you are of wrongdoing, actually, it can save you in in both, because there's so many scenarios where it applies. You see, the fifth doesn't just apply in a circumstance where the response to the question is a direct admission or confession to commit the crime. Mondo, you know, did you kill your neighbor last night? Truthful answer being yes, you say, I plead the fifth, right? But it can also apply in a circumstance where the truthful answer can form the link in a long chain that could result in you being criminally prosecuted. This is why the Fifth Amendment and understanding it is so important, particularly by the lawyer. Let's assume that there's an investigation going on uh regarding uh, you know, a missing person, a death that occurred, etc. And let's suppose that that particular event happened in the state of Florida. Right? Yep. You live up here on Rhode Island. Now, somehow, somehow, the police learn about you as a potential suspect. They don't tell you that you're a suspect, that you're under investigation for this missing person or this death, but they want to come and question you about basic stuff. They knock on your door, hi Armando. You know, we're the police, we're conducting an investigation. Don't worry, you're not in any kind of trouble. Don't let that worry you. We just have a couple of basic questions. We're investigating an incident. And you'll say, sure, no problem. Uh, you know, hey, where were you last night? Or where were you last week? Ah, last week I was on vacation. I was in Florida. Oh, great. When did you arrive? When did you leave town? When did you arrive? When did you come back? Great. Who did you go there with? You know, I went with uh my buddy Joe. You know, where did you stay? Uh I stayed at the hotel uh Fountain Blue. Great. And did you guys uh rent a car? Did you use Uber? Oh no, we had a rental. What did you have for a rental? Oh, I had my black Ford Fusion. Great. Well, hey, I think you've cleared up a lot for us today. Um, we'll be in touch. Thanks so much, officer. And let's suppose that that missing person or that death occurred, you know, in Florida, on that 4,400 block where the Fountain Blue Hotel is. And let's suppose witnesses saw a black Ford Fusion flee from the scene. Of course, you didn't admit to committing a crime, but you've now given the police information that puts you at the scene, the state of Florida, closer to the actual site, the Fountain Blue Hotel, potentially in a vehicle associated with the crime that fled from the scene, the Black Ford Fusion. You see? And police are allowed to use trickery and deception when conducting investigations. They're not obligated to be forthcoming and truthful with people about their investigative objectives, their investigative aims, what they already know, what they're trying to establish, because if they were to be required to provide that information, then it would make it more difficult for them to develop uh investigative leads and information to support criminal prosecutions. That's why it's important if you as an individual know you did something wrong, and you know if the police are at your doorstep that you could be in trouble, the best thing to do is not to speak with them. Say, listen, officer, I'd love to chat with you, but I think I want to coordinate or speak with a lawyer first. And sometimes the police will get snarky and say, hey, what do you need a lawyer for? We're just trying to have a normal chat with you. We're right here on your front steps. We don't need any lawyers. Hey, officer, thanks for the legal advice, but I want to consult with a lawyer so that you can protect yourself and know when and how to exercise your Fifth Amendment right to remain silent as a shield to help shelter or protect yourself from criminal prosecution. You need to learn to plead the fifth, but in order to do that, you also need to know when to plead the fifth. And having a lawyer in your corner or by your side can certainly help facilitate these things.

SPEAKER_02 18:09

All right. Well, I definitely learned a lot today, and hopefully, our audience has as well. And that sums it up for this episode. See ya.

SPEAKER_03 18:18

Not guilty.