One of the most important personal rights in the Constitution did not materialize out of nowhere. In the Middle Ages, English judges often administered oaths ex officio “OEO’s”. These oaths required that suspects truthfully answer all questions, even before they knew anything about the charges against them or the people bringing such charges.
In colonial times, British officials still occasionally used OEOs. After the Revolutionary War, the new American states quickly passed provisions guaranteeing the principle of nemo tenetur prodere seipsum, or “no man should be compelled to betray himself.” The fact that the proposed Constitution contained no such guarantee greatly bothered many people. So, the Fifth Amendment’s right to remain silent was born.
In its final form, this provision went well beyond nemo tenetur prodere seipsum. The Fifth Amendment also guarantees the right to a grand jury indictment (in federal criminal cases only) and the right to a jury trial, as well as limits on the federal government’s power to place individuals in double jeopardy (trying them twice for essentially the same offense) and its power to take private property for public use reasons.
What Does the 5th Amendment Mean in Simple Terms?
Simply stated, you do not have to answer a police officer’s or lawyer’s questions unless you want to do so. Furthermore, you do not have to stand in a lineup, try on a pair of rubber gloves, or do anything else unless you want to.
There are some limits. People must always identify themselves to police officers. Furthermore, they must produce certain documents upon request, such as a drivers’ license or other form of identification, as well as proof of motor vehicle insurance.
Self-Incrimination Before Trial
By the time they start patrolling the street, experienced police officers have usually spent years perfecting their interrogation skills. They know how to phrase questions to get the answers they need to assess the situation. Furthermore, they know what techniques work in given situations that can range from violence to impaired judgement.
Most people are just in a reaction state and stand little chance of knowing how to answer (like an attorney) in their own defense during such professional interrogations. So, the right against self-incrimination keeps people from unintentionally saying the wrong thing. This right is especially important in the early stages of a law enforcement encounter, before the Sixth Amendment’s right to counsel kicks in.
Furthermore, as mentioned, the right to remain silent also includes the right to refuse compliance. People must follow basic commands, like “step out of the car” and “stand over here.” But they need not do anything else. It is certainly one’s choice to exercise this right as completely as possible. Many police officers have a few tricks up their sleeves. For example, in a DUI stop, they may ask the defendant to walk around randomly. These seemingly pointless walks could serve as evidence of intoxication in court.
All that being said, it’s also important to exercise your right to remain silent as respectfully as possible. Do not antagonize police officers. Such encounters could end very badly for everyone involved and will often lead to having a reason for being arrested.
The definition of self-incrimination does not end here. Prosecutors cannot use the refusal to answer questions against you in court. In general, people are never punished for exercising their rights. And, if prosecutors could use the refusal against defendants in court, you’d probably be better off answering questions and hoping for the best. That would defeat the purpose of the Fifth Amendment.
There is one big caveat to this…the refusal to provide a chemical sample. This is probably the biggest exception to this rule. More on this below.
Self-Incrimination at Trial
Once court proceedings begin, the right against self-incrimination is not quite as important. Your attorney can advise you what questions to answer and how to answer them. If you are under oath, you must always tell the truth. But there are ways to answer certain questions which are both truthful and do not open you to give away information that is not being asked for in the question.
The same prohibition about silence not being used against you applies at trial as well. Prosecutors cannot comment about the defendant’s refusal to testify. This rule applies during both closing arguments and jury selection.
During closing, prosecutors cannot say something like “the defendant didn’t testify because the defendant is a liar.” Additionally, prosecutors cannot tell prospective jurors something like “only people who have something to hide refuse to tell their stories.”
In this particular context, the right against self-incrimination is absolute and held up by the law.
The Fifth Amendment in Action
To see how these principles work in the real world, let’s examine a typical DUI arrest. To start, assume Dan Defendant had a few beers at a party in Phoenix. On the way home, Police Officer Pat notices that Dan has a burned-out taillight. The squad car’s overhead lights come on, and Dan pulls over.
When Pat walks up to the driver’s side window, under the Fifth Amendment, Dan must show the officer his drivers’ license and proof of insurance. But he does not have to answer any questions, no matter how innocent they seem. In fact, he does not even have to roll down his window.
Dan’s refusal to cooperate, though legal, will probably irritate Pat for being disrespectful. When Pat tells Dan to step out of the car, he must do so. However, when Pat asks Dan to walk a straight line or hold up one leg, Dan has the right not to do so. Most likely, these field sobriety tests would be used against Dan later as evidence of intoxication in court.
Dan’s refusal to answer questions, and his refusal to perform field sobriety tests, cannot be used against him later. Prosecutors cannot even mention these things in front of the jury.
Next, we come to the Breathalyzer request. Under Arizona law, the refusal to provide a chemical sample is admissible in court. However, Dan still has the right to refuse. This right is limited as well. Pat could get a search warrant from a judge and force Dan to take a blood test. But these instances are rare because they usually need planning and preparation where time constraints usually dominate the scene.
Exercising your rights usually comes at a cost. If Dan refuses to answer questions, he will probably need to call a Phoenix bail bonds office. Pat will almost certainly arrest him. Then again, all things playing out evenly where the use of alcohol is concerned, it is almost impossible for Dan or anyone else to talk themselves out of this situation. So, the arrest was probably inevitable.
You have other constitutional rights as well, such as the right to reasonable bail. To exercise this right in Arizona, contact Sanctuary Bail Bonds (bail bond near me) 24/7 any day of the year at (602) BAIL-247 or (602) 224-5247. We provide free bail bond consultation and fast and friendly bail bonding services. Our professional bond agents are on YOUR SIDE! To learn more about bail bonds visit our FAQ-page.
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