How to Invoke Your 5th Amendment Right to Remain Silent

If you decide to speak to law enforcement about a criminal allegation without an attorney being present, then you are waiving important rights. Those rights include your Fifth Amendment rights against self-incrimination and your Sixth Amendment right to have an attorney represent you.

Before you waive your constitutional rights, talk with a criminal defense attorney. An attorney is often best positioned to explain their side of the story to the law enforcement officer. You can invoke your rights by saying:

“I’m taking the 5th and 6th amendment. I will remain silent until after I speak with my attorney.”

Then, remain silent. If you are lawfully detained, you can tell the officer your name, address, and date of birth without waiving your rights.

In a more formal setting, such as a deposition or hearing, the person might say:

“On the advice of counsel, I invoke my fifth amendment privilege against self-incrimination and respectfully decline to answer your question.”

Your 5th Amendment right to remain silent and your 6th Amendment right to counsel is explained in the Miranda rights warning read by officers before a custodial interrogation. But even if the officer never reads you Miranda warnings, you can still invoke your rights.

People sometimes ask: “Won’t invoking my right to remain silent make me look guilty?” Maybe, but innocent people often assert their right to remain silent until they speak with an attorney.

Additionally, people familiar with the criminal justice system are more likely to invoke their right to remain silent. For example, law enforcement officers, judges, and prosecutors are more likely to invoke their rights if questioned about criminal wrongdoing if they are the target of a criminal investigation.

Furthermore, if the case goes to trial, the jury is never told that the person invoked their rights. In other words, the fact that you remained silent cannot be used against you at trial. Guilty people often attempt to “talk their way” out of an arrest, which rarely works in their favor.

Hiring an Attorney to Invoke Your 5th Amendment Right to Remain Silent

If you hire a criminal defense attorney, the attorney can notify the investigating officer that you are invoking your rights under the 5th and 6th Amendments. This notice prevents the officers from asking you any questions about the accusations or coming to your home to interrogate you.

If the officer intends to make an arrest, an attorney can help you surrender under terms that may speed up your release and save you money. We can contact the prosecutor to discuss lowering the bond amount.

At Sammis Law Firm, our criminal justice attorneys also handle other critical details that might minimize the embarrassment, stress, and expense accompanying the arrest.

What Does the Fifth Amendment Say?

The Fifth Amendment of the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The simplest way to understand the right to remain silent can be found in various versions of the Miranda, including:

You are under arrest for the crime of _________ .

You have the right to remain silent. Any statement you make may be used for or against you in a court of law.

You have the right to an attorney.

If you cannot afford an attorney, one will be appointed for you.

Do you understand each of these rights that I have explained?

With these rights in mind, would you like to answer questions?

What if the Arresting Officer Never Read the Miranda Warning?

As a criminal defense attorney, one of the most common questions that come up during the initial consultation is:

“The officer arrested me but didn’t read my Miranda warnings. How does that help my case?”

Miranda warnings are only required when you are “in custody” and when the officer is “interrogating” you by asking questions that call for an incriminating response.

If the Miranda warnings were required but not given, then any statements you made during questioning should be suppressed if your attorney files the appropriate motion to suppress those statements.

Even if the arresting officer didn’t read you the Miranda warnings, you might still refrain from making an incriminating statement because, under certain circumstances, it might still be used against you for impeachment purposes.

Additionally, if you made “spontaneous statements,” the admissibility of those statements does require the reading of Miranda warnings.

What are the Protections against Self-incrimination in Article 31, UCMJ?

When the U.S. Supreme Court established the “Miranda Warning” requirement, it referenced the military’s “warning rights” practice under Article 31, Uniform Code of Military Justice (UCMJ)(Section 831 of Title 10, United States Code).

The U.S. military justice system provides an accused with rights and due process protections generally considered superior to those offered to a defendant in civilian criminal courts. For example, Article 31, UCMJ, gives members of the armed services the following rights:

Servicemembers also have a right to free military counsel when:

The military justice system also provides these rights earlier in the process. For example, these rights apply whenever the
servicemember is questioned as a suspect of an offense. In civilian practice, Miranda rights or warnings are not required unless there is custodial interrogation by law enforcement personnel.

The attorneys at Sammis Law Firm often represent individuals accused of a crime committed on federal property, including at the MacDill Air Force Base. For any crime allegedly occurring on a military base or installation, including MacDill Air Force Base, the suspect might be asked to sign a statement called the Acknowledgement of Offenses and 5th Amendment/Article 31 Rights Advisement.

The form used for criminal investigations at the MacDill Airforce Base might require that the suspect acknowledge the following statement:

“I have been advised that I am suspected of the following offenses: ___________________.”

The form also requests that the suspect acknowledge being advised of the following rights according to the 5th Amendment of the U.S. Constitution and Article 31 of the Uniform Code of Military Justice (UCMJ):

The form might also ask the suspect to acknowledge waiving the following rights: