It’s the Fifth Amendment of the U.S. Constitution that a defendant in a court case invokes when “pleading the fifth.” One of the protections afforded by the Fifth Amendment is that it ensures that every U.S. citizen has the right to protect themselves against forced self-incrimination. This is why police officers warn you of your Miranda rights as you are arrested in any U.S. state.
On television and in movies, police read the Miranda warning as they arrest someone, put the handcuffs on, and put them in the police car. This is not required by law. Instead, your Miranda warning must be given before interrogation takes place.
A defendant can also assert Miranda rights while being taken into custody and ask to speak to an attorney. You can unwittingly waive your Miranda rights by answering questions and engaging in small talk while being arrested. If you are speaking to the police, you can change your mind at any time and decide not to answer any questions and ask for an attorney.
Pleading the Fifth: Understanding Your Miranda Rights
Your Miranda rights draw from more than the Fifth Amendment. They include components of the Sixth and Fourteenth Amendments as well:
- You have the right to remain silent (Fifth Amendment)
- Anything you say can and will be used against you in a court of law (Fifth Amendment)
- You have the right to an attorney (Sixth Amendment)
- If you cannot afford an attorney, one will be appointed for you (Sixth Amendment)
The Fourteenth Amendment allows the Miranda warning to apply to all 50 states in the United States. The actual wording of the warning varies from state to state, so there is no uniform script. However, all components must be read, and you must be asked if you understand them and if you want to waive your rights as read to you.
A Brief History of the Miranda Warning and the Fifth Amendment
In the 1966 landmark case of Miranda v. Arizona, it was determined by Supreme Court Chief Justice Earl Warren that Ernesto Miranda’s rights were violated during interrogation when he was compelled to confess without fully understanding his rights under the Fifth and Sixth Amendments.
The Fifth Amendment has its roots in common law dating from 1215. This amendment also prohibits you from being tried for the same charge twice, called double jeopardy. It also protects citizens by giving them the right to due process of law and having a grand jury hear their case before being indicted with felonious crimes, as well as keeping the government from seizing your private property without compensating you for the fair market value.
The Difference Between Miranda Rights and Privilege
Your Miranda rights are actually a privilege. The difference can be confusing as legal definitions often differ from society’s understanding of what holds as a right and what holds as a privilege.
It’s easiest to understand a right as inherent, constitutional, and irrevocable. That is, you have a constitutional right to remain silent. It is your privilege whether to exercise that right or not. Privilege is conditional and changeable.
Your Miranda rights are based on constitutional law, and you have the privilege whether to exercise those rights after being advised of them (or warned of them—hence the name Miranda warning).
Are Miranda Warnings and Miranda Rights Interchangeable?
There is a distinct difference between your Miranda rights and the Miranda warning. The warning is what you are read by a police officer, while the rights are what you are afforded constitutionally as a U.S. citizen. They are often used interchangeably, but they are two different things.
Who Can Plead the Fifth?
Defendants charged with a crime who refuse to testify in their own trial can plead the fifth, as can subpoenaed witnesses who refuse to answer self-incriminating questions.
Additionally, if you have been called in for questioning or to provide a statement by the police, you may plead the fifth. Do not succumb to a false sense of security if you haven’t been arrested; the police are likely hoping you will incriminate yourself so that they can bring charges against you.
Pleading the Fifth in Civil and Criminal Cases
You can plead the fifth in a civil court case such as a personal injury case. However, if your civil case is juried, then that jury may interpret your silence as an admission of guilt.
If you plead the fifth in a criminal case, this means that you invoke the fifth for the entire duration of your trial. You can invoke your right at any time, even while on the stand.
Your Right to Consult An Attorney
A Miranda warning advises you of your Miranda rights. You can plead the fifth and ask for an attorney at any time, whether you’ve been detained or you’ve simply been asked to provide a statement.
Consult an experienced attorney before answering any questions if you are speaking to the police. Whether you already have an attorney or you require a court-appointed attorney, due process is your right and your privilege as a United States citizen. Your attorney will make sure that your Fifth Amendment rights are protected through the entire duration of your interrogation and your case so that you will not incriminate yourself.
