Fifth Amendment Over Two Decades of Experience on Your Side

The Fifth Amendment

The Fifth Amendment to the Constitution provides the criminally accused with very important rights. The most noteworthy are Double Jeopardy and the right against self-incrimination. Both of these rights are aimed at protecting the individual against unfair treatment by the government.

Double Jeopardy
The Fifth Amendment prohibits the government from prosecuting an individual more than once for the same offense. In actual practice, jeopardy does not “attach” in a criminal case until the jury is sworn in by the judge. Once that moment has occurred, the prosecution has to successfully prosecute the case, or they are forever barred from doing so again (unless there is a mistrial due to the defense in the case). This prevents the government from endlessly tormenting a defendant with repeated prosecutions for the same offense, even after failing to successfully prosecute him. Double jeopardy does not protect the defendant from being prosecuted separately by the federal government and the State of Colorado for the same offense, as both levels of government have jurisdiction over the case.

The Right Against Self-Incrimination
Individuals are protected by the Constitution against having to be “a witness against themselves.” This applies both to in-court testimony, as well as to being questioned by the police. This means that you do not have to speak to the police when they ask you questions. This law came into being in order to prevent coercive government conduct. The government cannot force someone to confess outright, or say anything that could inculpate themselves in criminal activity.

The most famous self-incrimination case is Miranda v. Arizona, 384 U.S. 436 (1966). This is the case that created the “Miranda rights,” which include an advisement that the defendant has a right to remain silent, and that anything they say can be used against them in a court of law. The Constitutional protections created by the Miranda case do not apply unless a person is in custody. Custody obviously exists as soon as the defendant has been placed in handcuffs, or in a jail cell. However legal custody begins even earlier – as soon as the person has a reasonable belief that they are not free to leave an encounter with law enforcement.

It is important to note that The Fifth Amendment right against self-incrimination is much broader than just the Miranda case. Miranda merely established that any confession obtained from a person in custody would not be admissible against them at trial – unless the police properly advised the defendant of his rights before such a confession was made. The Fifth Amendment also extends to situations where the defendant is not yet in custody - where the accused is still entitled to remain silent.

Didn’t Read Me My Rights
Clients often explain that they were not read their rights when they were arrested. This does not, by itself, mean that you will win your defense case. First, the failure to give Miranda warnings can only have an effect on whether the things you said can be used against you in court. It has no effect on other evidence in the case (unless your illegally obtained statements lead the police to this other evidence). Second, a winning argument on this issue can only have the effect of excluding from evidence the statements that you made while in custody. The failure to give Miranda warnings makes no difference as to statements you made to the police before you were in custody. Third, custodial statements themselves will not be excluded from evidence if they were made spontaneously – and not as a result of questioning.

The police will many times intentionally refrain from giving the Miranda warnings, because the last thing they want is for you, the defendant, to stop talking. They know that you may, without even being asked, start asking questions or making statements that incriminate yourself. They know that as long as they do not ask questions, it does not matter that they have not given you the warnings. They also know that if they give you the warnings, you may not be willing to talk at all.

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