Invoking the Fifth Amendment doesn’t always work

On Behalf of | Feb 6, 2017 | Criminal Defense |

Most Texas residents know they can invoke their Fifth Amendment right to remain silent if a police officer asks them a question. The Fifth Amendment protects against ‘self-incrimination’ by allowing you to remain silent and ask for a lawyer.

A recent article published by Vice offers more insight on how to effectively use the Fifth Amendment. The article explains that using the Fifth in the wrong way could be just as damaging as talking to police.

The traditional way of invoking the Fifth Amendment may not work

Let’s say you’re driving home from the office, on your way to pick up your children from daycare, early on a Friday evening. You’re tired from the work week and looking forward to relaxing at home with your children. However, a police officer sees you swerve out of your lane. You’re 100 percent sober, but the officer pulls you over and starts to ask questions.

The questions seem innocent so you answer them. Later, the officer asks about the medications you’re taking and you freeze. Where is he going with this? Could this information be used against me?

You pull out a business card from an attorney friend and read the back out loud, “I’m invoking my Fifth Amendment on my attorney’s advice. I decline to answer because it might incriminate me.”

In the past, this might have been an okay strategy. These days, lawyers are saying it’s a bad idea because of the 2013 Supreme Court case Salinas vs. Texas.

How Salinas vs. Texas changed the game

In Salinas v. Texas, police interrogated a young man with non-threatening questions and he freely answered them. However, when they asked him an incriminating question, he became silent. The Supreme Court justices decided that the man incriminated himself. The justices said, that the man’s selective silence (which was his Fifth Amendment right) contributed to him appearing guilty.

Salinas v. Texas changed the game. Now the use of your Fifth Amendment privilege could be used against you – based on how and when you use it. For this reason, lawyers are saying not to specifically invoke the Fifth. Instead, they recommend you answer as little as possible and request to speak to a lawyer.

Here’s what you do have to say

When an officer believes you’re doing something suspicious, you must tell him or her your name and what you’re doing. Beyond that, if the officer continues asking questions, the best course of action is to say, “I want a lawyer,” and nothing more. This is not being sneaky. It’s being smart.

Prosecuting attorneys are experts at weaving evidence to make you appear guilty. Having Texas criminal defense lawyer on your side can help you formulate answers and talk to police so you don’t inadvertently incriminate yourself. A criminal lawyer will also defend you against the criminal allegations you’re facing.