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Fifth Amendment - Don't Say Anything

Credit must be given (anonymously, to protect client confidentiality) to a client who actually understood the Miranda warnings. After being arrested on suspicion of certain illegal activities, the arresting officer read him the standard Miranda warnings and then asked if he wanted to speak with police and answer questions relating to the incident in which he was a suspect. In other words, the officer asked if he wanted to be interrogated and confess to the suspected crimes.

Anything You Say Can and Will Be Used Against YouWe have all heard the Miranda warnings untold numbers of times in television programs and movies. They are referenced in news reports, and sometimes even find their way into casual conversation. "You have the right to remain silent. Anything you say can and will be used against you...."

This client actually understood the warning he was given by the police officer. When the officer finished reading Miranda and asked him if we wanted to talk, he responded (paraphrasing here), "I don't mean to be disrespectful, but you just told me that anything I say will be used against me. If what I say will be used against me, then I don't think I should say anything."

Right to Remain Silent - Risks and Benefits

The right to remain silent (aka, privilege against self-incrimination) is guaranteed under the Fifth Amendment of the United States Constitution. The Miranda warnings do not create the right. Instead, the right to remain silent and the privilege against self-incrimination exist independent of any warnings or notices given by police. Miranda warnings are required under United States Supreme Court precedent, as a way to help prevent coerced confessions and to ensure that people understand their rights and have the opportunity to make an informed decision when being asked to give up those rights.

Engaging in a risk-benefit analysis can be an important part of the process of making an informed decision regarding your rights. There will always be some level of risk associated with making any statement to police. As stated in the Miranda warnings, any information you provide to police "can and will be used against you." Understanding that level of risk is necessary in order to intelligently balance that risk against any potential benefit that may come from talking with police.

When the benefits outweigh the risks, it may make sense to waive the right to remain silent and instead choose to talk with police. When there are no identifiable benefit, or when potential benefits are small and risks are great, exercising the Fifth Amendment privilege against self-incrimination and refusing to answer questions may be the best option.

Right to Have an Attorney Present

The right to remain silent and the right to counsel are independent rights. If you choose to speak to police, you still have the right to be represented by an attorney and to have your attorney present during any questioning, interview, or interrogation with police. Consultation with an attorney prior to deciding whether to speak with police and the assistance of counsel during questioning are both important constitutional rights.

Invoking Fifth Amendment Privileges and Rights

If you choose exercise your privilege against self-incrimination under the Fifth Amendment and not speak with police, you should make it clear to the officers involved that you are exercising your constitutional rights. Simply telling the police you don't want to talk or refusing to answer questions can leave the door open for police to make repeated attempts to question you. Not clearly stating that you are invoking your Fifth Amendment rights can also leave the door open for a prosecutor to try to use your silence against you in court.

A simple statement can often be sufficient - "I am invoking my Fifth Amendment rights, and I refuse to answer any questions until I have first had an opportunity to consult with my attorney." But it is always best to consult with an attorney to ensure that your rights are protected.

Contact a Utah Attorney

Having the assistance and counsel of an experienced attorney can be critical when facing possible criminal charges. We are pleased to provide legal services to clients all along the Wasatch front, and throughout all of Utah. Contact us today to arrange for an initial attorney consultation.



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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties - and all of Utah.

With offices in Salt Lake City and Davis County, the Canyons Law Group provides legal services to clients throughout Utah.
560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 South Main St., Suite A, Layton, UT 84041

Call 801-448-7451 to arrange for a confidential initial consultation.

Stephen W. Howard, PC

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