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Your 5th Amendment Right to Silence Is Golden

John Caile — April 12, 2019Every man and woman reading this column has most likely learned the importance of asserting your Fifth Amendment right to remain silent and wait for an attorney following a lethal-force encounter. But things have gotten more complicated.

It used to be that simply “keeping your mouth shut” was sufficient. But recent court decisions have said that before asserting his or her rights, a suspect’s silence may be used in court by prosecutors as an indicator of guilt.

Don’t Wait — Assert Your Rights!

In order to properly assert your Fifth Amendment rights, you must do so immediately by “clearly and unambiguously” communicating to police that you don’t wish to talk to them and that you want to have your attorney present when you do. For example:

“Officer, I do not want to say anything more until I have an attorney present.”

Again, do not wait to see if you are placed under arrest. Instead, invoke your rights in the first moments of contact with police, after saying only something like, “Officer, I was attacked,” or other very brief comments you have worked out with a good attorney.

Remind yourself that you will be flush with adrenaline and in a highly agitated state. If you forget to invoke your rights or start babbling, you will likely only hurt your case. Less is always more.

Warning: Silence Goes Beyond the Police

You may have your statement to police committed to memory, and you may deliver it perfectly. However, following a deadly encounter, you will likely be surrounded very quickly by a wide range of people other than police: EMTs, onlookers and maybe even witnesses.

It may sound rude, but even an innocent-sounding question like, “Hey, Ma’am, are you OK?” should be ignored. Say simply, “I’m waiting for the police.” Your safety outranks your manners.

Remember, police can retain anything they either overheard or obtained by interviewing witnesses. You would be astonished at how incriminating an innocent phrase made at the scene can be made to sound in the courtroom.

The Media Is NOT Your Friend

Of all the people milling around a crime scene, members of the media present the greatest potential threat. There are sound reasons for this. First, a bystander might make a mistake relating what he thought he heard you say. That’s always a risk.

But the media is worse. It is just a hard fact of life in today's world that more than 90 percent of the media are not gun owners. They don’t like guns, and they likely support gun control in general and restrictions on your right to carry in particular.

As a result, they will be doing everything in their power to get you to blurt out a soundbyte that they can use on the evening news. Rest assured, the comment will not be helpful to you.

Thankfully, dealing with the media is the least complicated of all your interactions. When badgered by anyone in the press, stay silent or say only, “No comment.” Even after emerging with no charges filed, do not agree to an interview.

Most attorneys will agree. They know that charges could still be filed weeks or even months later. Now imagine that happened based on incriminating statements YOU made on some TV news program!

Be smart. Remain silent. You have that right.