Fifth Amendment: Right to Remain Silent

Taking the Fifth” refers to the practice of invoking the right to remain silent rather than incriminating oneself. It protects guilty as well as innocent persons who find themselves in incriminating circumstances. This right has important implications for police interrogations, a method that police use to obtain evidence in the form of confessions from suspects.

The ban on forced confessions

If the accused did not have the right to remain silent, the police could resort to torture, pain, and threats. Such methods might cause an innocent person to confess to avoid further punishment. In fact, there have been occasions in American history when the police have wrung confessions out of suspects. One of the most brutal incidents took place in 1936 and resulted in the case of Brown v. Mississippi. Police accused three black men of a murder and whipped them until they confessed. A Mississippi court sentenced the men to death, but the U.S. Supreme Court reversed the verdict. Confessions obtained by physical torture cannot serve as the basis of a conviction in state or federal courts. The rationale behind this point of law is that forced confessions offend the dignity of human beings, undermine the integrity of government, and tend to be unreliable.

Requirements for asserting the right against self-incrimination

The right against self‐incrimination applies mainly to confessions and it pertains only to incriminating communications that are both “compelled” and “testimonial.” If a suspect waives his or her right to remain silent and voluntarily confesses, the government can use the confession against the suspect. The Fifth Amendment protects witnesses from giving testimonial evidence or answering questions that may incriminate them. Testimonial evidence is provided by live witnesses or through a transcript of a live witness. The Fifth does not apply to physical evidence (for example, the taking of blood samples when there is reason to believe that the suspect was driving while intoxicated).

Confessions and counsel

How is the Fifth Amendment's privilege against self‐incrimination linked to the Sixth Amendment's right to counsel? In Escobedo v. Illinois (1964), the Supreme Court required the police to permit an accused person to have an attorney present during interrogation. Whenever police officers shift their questioning from investigatory to accusatory, defendants are entitled to counsel.

Miranda warnings

Expanding upon Escobedo, the Supreme Court set forth stringent interrogation procedures for criminal suspects to protect their Fifth Amendment freedom from self‐incrimination. Miranda's confession to kidnapping and rape was obtained without counsel and without his having been advised of his right to silence, so it was ruled inadmissible as evidence.

This decision, Miranda v. Arizona (1966), obliged the police to advise suspects of their rights upon taking them into custody. Prior to any questioning of suspects in custody, the police must warn the suspects that they have a right to remain silent, that anything they say may be used against them, and that they have the right to counsel. The suspect may voluntarily waive these rights. If, at any time during the interrogation, the suspect indicates that he or she wishes to remain silent, the police must stop the questioning. Additionally, Miranda mandates that confessions obtained without complete Miranda warnings are inadmissible in court.

The erosion of Miranda

Conservatives branded Miranda a “technicality” that would “handcuff” the police. In the 1970s, 1980s, and 1990s, the Supreme Court narrowed Miranda's scope. Although the Court has not yet overruled Miranda, it has limited its impact. In Harris v. New York (1971), for example, the Burger Court ruled that statements made by an individual who had not been given the Miranda warnings could be used to challenge the credibility of his testimony at trial. In New York v. Quarles (1984), the Court created the public safety exception: officers can ask questions before giving the Miranda warnings if the questions deal with an urgent situation affecting public safety. In Nix v. Williams (1984), the Court invented the inevitable discovery exception to Miranda. It allows for the introduction of illegally seized evidence if a court determines that the police would have inevitably discovered the evidence without improper police questioning of the defendant.

When a Miranda warning is required

Miranda applies only when the police have a suspect in custody.

When a Miranda warning isn't necessary

Police don't have to give the warnings in these situations.

  • When the police have not focused on a suspect and are questioning witnesses at a crime scene.

  • When a person volunteers information before the police ask a question.

  • When the police stop and briefly question a person on the street.

  • During a traffic stop.