Invoking the Protection of the Fifth Amendment Is Your Right and It’s the Right Thing to Do

“[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”

– Watts v. Indiana, 338 U.S. 49 (1949) (Justice Jackson, concurring)

“Tried to take the Fifth Amendment use it, twist it and bend it”

– Eminem, “Public Enemy #1”

From high school civics classes to television shows and music lyrics, most people are familiar with the phrase, “Taking the Fifth.” There are multiple rights enshrined in the Constitution’s Fifth Amendment, but “Taking the Fifth” refers to the right individuals in the U.S. have against self-incrimination. The pertinent section of the Fifth Amendment states: “No person . . . shall be compelled in any criminal case to be a witness against himself.”

Despite widespread knowledge of the protection afforded by the Fifth Amendment, people frequently waive their rights under it and agree to speak with the police without knowing the scope of the investigation or whether they are a target. Notably, in October 2021, actor Alec Baldwin was interviewed by police after a prop gun he was holding fired a real bullet, killing a cinematographer and wounding a director on the set of Baldwin’s movie, Rust. At the time he agreed to speak with the police investigators, he asked, “My only question is, am I being charged with something?” The police read him his Miranda rights (e.g., you have the right to remain silent, you have the right to an attorney, etc.), which one detective termed “just a formality.” Baldwin spoke with investigators for about an hour, answering questions and offering theories on what happened. According to news reports, he spoke to investigators again a week later, this time providing conflicting information about who handed him the prop gun.

In January 2023, prosecutors in New Mexico, where the shooting occurred, announced that Baldwin would be charged with involuntary manslaughter, saying that he had a duty to check that the weapon was safe. Whether Baldwin should have been charged is not the subject of this article. Baldwin’s decision to speak twice to the police, without an attorney and without full information about what happened, however, has been the subject of much debate and internet discussion. Why did he not invoke his constitutional right against self-incrimination? Why did he not at least wait until he had spoken with an attorney before speaking with the police?

Refusing to answer questions on Fifth Amendment grounds can result in potential adverse ramifications in a civil lawsuit and also in the court of public opinion. However, the risk of potential prosecution, which almost always outweighs other considerations, informs the view that it is generally a bad idea to speak to the police immediately upon request, and without a lawyer, who can prepare you for the potential interview, be present when you are interviewed, and even help to direct the course of the interview to your benefit.

History and Purpose of the Fifth Amendment

In the 1500s and 1600s, British courts, such as the Star Chamber, required an accused to answer any question put to him, without advance notice of his accusers, the charges against him, or the evidence against him. The Star Chamber could order torture, prison, and fines. The experience of these courts helped to advance the idea that a person should not be forced to accuse themselves. As it took hold in the American colonies, this idea became a foundation and part of the Fifth Amendment. The Founding Fathers “made a judgment and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused.” Ullman v. U.S., 350 U.S. 422, 427(1952).

Those who argue that only guilty people invoke their Fifth Amendment rights, are not only wrong, but miss the point. The Fifth Amendment equally protects the innocent, who may be subject to, or the victims of, flawed judgments or even tyrannical actions by the government. This was explicitly recognized by the Supreme Court in Oliver v. Renner, 532 U.S. 17, 21 (2001). “[W]e have emphasized that one of the Fifth Amendment’s “basic functions . . . is to protect innocent men . . . ‘who otherwise might be ensnared by ambiguous circumstances.'” “[W]e recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.” (citations omitted).

The Many Risks of Speaking Off the Cuff and Not Invoking

As an initial matter, absent a subpoena, you are not obligated to speak with the police. But, when speaking to them, either voluntarily (with your lawyer present!) or pursuant to a subpoena, you must tell the truth. In addition to potentially becoming the target or focus of the investigation if the police discover you have lied, lying to the police is a separate and additional crime.

What are the risks associated with waiving the right against self-incrimination? Why would an innocent person choose to exercise their right not to speak as opposed to just assisting the police?

First, no matter how eloquent you may be, you cannot talk your way out of getting arrested. If the police believe you have committed a crime, nothing you say to them at that point will convince them to just leave you alone. You may also end up saying something that the police can use against you in a prosecution or something that causes the police to re-direct their investigation towards you.

Second, you do not know the focus of the investigation or the evidence that has already been gathered. Moreover, the police may mislead you about the evidence they have gathered and what other people have said, or play on your emotions to get you to admit something. A seemingly innocuous statement by you may be misinterpreted or turn out to be significant and damaging in the context of the investigation.

Third, most people are not experienced in being questioned by law enforcement. Even for the innocent, it is a stressful encounter where preparation is important. The questions asked may be so vague or ambiguous that an innocent answer can be misinterpreted as an admission of criminal conduct. The investigators also could ask you irrelevant questions that may be embarrassing to answer. If you evade or answer even an irrelevant question with a little white lie, your credibility with respect to the important questions may be in doubt. The investigators may — and often do — conclude that, if you have lied about one thing, you have lied about everything. Furthermore, if you are subsequently charged, this could adversely affect your decision whether to testify in your own defense as you will have to consider whether the jury might discount your testimony on the basis of an inconsequential and irrelevant statement you previously made.

Fourth, if you and the interviewer are the only people present, the report of the interview — and any statements you may have made — is the interviewer’s statement, not yours. If the investigating agent does not recall your statement correctly, misstates what you said, or fails to report what you actually said, you will be in a he-said-she-said situation with law enforcement on the other side. Who is the jury more likely to believe — the accused or the police? At the very least, the presence of an attorney can help to ensure that the record of your statements is accurate.

Fifth, invoking your Fifth Amendment right not to speak with the investigators initially does not prevent you from waiving it later. You can always change your mind and agree to talk to the police after you have met and prepared with your attorney, learned more about the scope and focus of the investigation, and have your attorney present for the interview. And, if you are guilty, waiting to admit to the crime with your attorney present may assist in getting a better plea deal. If you have already admitted to everything before asking for your attorney to be present, then your attorney has little or no helpful information to negotiate a deal on your behalf.

Sixth, if you later testify at (your) trial and say anything that is not exactly in line with your earlier, unprepared statement — even if you have remembered something helpful that you did not recall when you were first interviewed — the prosecutor will use that to impeach you and try to convince the jury that you are not being truthful. Also note that, at trial, the prosecutor will have the police officer who interviewed you only testify about the bad things you said, not anything that is helpful to you. Due to the rules of evidence, your defense attorney likely cannot get the police officer to provide information that is helpful to your defense.

Conclusion

We do not know whether Alec Baldwin’s decision to speak twice to investigators definitively led to his pending criminal charges. But why run the risk of waiving your constitutional rights, especially without first seeking the advice of an attorney? The results can be devastating.