Exercising Your Fifth Amendment to be Silent
Almost everyone has seen a crime drama on television. A police officer slaps handcuffs on a suspect and then reads him or her standard Miranda warnings. These tell the suspect “You have the right to remain silent. Anything you say may be used against you in a court of law. . .”
This is not just a technicality that must be followed, but the protection provided by the Fifth Amendment to the U.S. Constitution, followed by all 50 states. 
What Does the Right to Remain Silent Really Mean?
The Fifth Amendment to the U.S. Constitution provides in relevant part that no person “shall be compelled in any criminal case to be a witness against himself.” Although the language seems to apply only to the privilege not to testify in a criminal case, a witness in a civil case can assert the privilege and not be compelled to answer questions that may subject them to criminal prosecution.
What if There are Parallel Civil and Criminal Proceedings?
The right to remain silent covers more than just statements that are the equivalent of admitting guilt in a criminal case, but applies to statements in a civil proceeding that might lead to incriminating evidence. It is common for a person to be involved in both a criminal and civil proceeding at the same time.
One example of this dates back to the 1990s when former Heisman Trophy Winner O.J. Simpson was tried and acquitted of the murder of his ex-wife and her friend. He claimed his Fifth Amendment privilege and did not testify in the criminal proceeding.
After the criminal proceeding was over and he was a free man, the family of those he allegedly murdered pursued a wrongful death action against him in civil court. They called him as a witness in the civil case.
He could not refuse to testify on Fifth Amendment grounds because his answers would not subject him to criminal prosecution. The prosecution was over, and he could not be tried again even if he stood on a mountain top and shouted, “I killed them.”
Should You Always Invoke the Fifth Amendment Right?
If you are under investigation for criminal conduct or are concerned that you might be subject to any criminal charges, it is best to invoke your right to remain silent. Even if you think it would be helpful to your case to answer, do not do so until you consult with a criminal defense attorney.
If you are facing criminal prosecution, or are involved in a civil proceeding and concerned about answering questions in that process, use the Tulsa Attorney Directory to locate legal counsel who specializes in criminal defense.
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