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Fifth Amendment protections against self-incrimination

The Fifth Amendment to the U.S Constitution details the rights of the accused. Many people have heard of "pleading the Fifth", which refers to the self-incrimination clause of the Fifth Amendment. In the historic case of Miranda vs. Arizona, the U.S. Supreme Court ruled that upon being taken into police custody and before being questioned, everyone must be informed of their Fifth Amendment rights to remain silent and to have an attorney present during their interrogation.

As a result of Miranda, the accused must be informed that they have the right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney and that, if they cannot afford an attorney, one will be appointed for them. The right to remain silent must be clearly invoked by a suspect during an interrogation or a defendant during legal proceedings. This right must be unequivocally invoked therefore, merely remaining silent may not be enough to stop an interrogation.

To be effective, the right must be invoked not only at the first interrogation but also at all subsequent interrogations. The accused must also restate their desire to invoke their Fifth Amendment right to remain silent after long periods of silence or else their statements may be used against them. If an accused makes voluntary statements after being informed of and understanding their Miranda rights, their statements may be interpreted as a waiver of their right to remain silent.

Once the right has been clearly invoked, all questioning must cease. If law enforcement continues to interrogate the accused, any statements they make may not be used against them in court. The Fifth Amendment protections against self-incrimination also extend to criminal defendants; they have the right not to testify during their criminal trial. However, defendants who choose to take the stand are deemed to have waived their Fifth Amendment right for the entirety of the trial. Fifth Amendment protections extend to other areas of criminal defense as well. These will be discussed in a future post.

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