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Fifth Amendment Right Not to Incriminate Oneself

Fifth Amendment Right Not to Incriminate Oneself Also Applies to Post-Arrest Silence

The Fifth Amendment to the United States Constitution contains a right basic to our criminal justice system. It provides that no person can be compelled to be a witness against himself.

Many believe that this right is meant to protect only the guilty; this, however, is wrong. The Supreme Court of the United States has on more than one occasion spoken out against this improper assumption. In the case of Ohio v. Reiner, 532 U.S. 17, 21 (2001), the Supreme Court set forth the reasons why the Fifth Amendment is not meant to protect only the guilty.

We have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's basic functions ... is to protect innocent men ... who otherwise might be ensnarled by ambiguous circumstances.

Grunewald v. United States, 353 U.S. 391, 421 (1957) (quoting Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 557-558 (1956). Prosecutors often seek to introduce silence of the defendant as an admission of guilt. In the case of Cowan v. State, 3 So. 3d. 446 (Fla. 4th DCA 2009) a conviction for burglary was reversed because of the prosecutor's improperly exploring the defendant's right to remain silent after arrest.

In Cowan, the defendant was arrested with another person suspected of burglary, and both men were placed in the back seat of the police car. As is the common practice of most police departments, the police car had a device to record any conversations.

In this particular case the prosecutor sought to admit excerpts of the recording. In the tape that was played, the person arrested with the defendant was heard to be saying, "Damn, you think they caught us for the home invasion, home burglary?" and also saying "Hey, we did not leave anything in there?" The prosecutor argued that the defendant's lips seemed to be moving and that he appeared to say, "They've got it. They've got it."

Later the defendant testified in his own defense, denying any involvement in the burglary. He testified that he did not say anything while seated in the police car and, on cross-examination as to why his mouth seemed to be moving as in speech, he denied his lips were moving. He also denied ever saying, "They've got it. They've got it." The defendant explained that he remained silent in spite of his companion's declarations, because he was angry at being arrested. The prosecutor then asked the following questions:

Q Did you at any point say to him: "What are you talking about ? What burglary?"

A No, because I was mad and he got me arrested.

Q How come you didn't say: "What burglary are you talking about?" How come you didn't say that?

A I don't know what you're talking about.

The defense counsel had objected to this line of questioning.

In closing argument the prosecutor argued to the jury that it would have been a reasonable reaction for a normal person to deny that statement or least to say that he didn't burglarize anybody, or why are you including me, or what burglary - anything along those lines indicating that the defendant was not part of the burglary.

The court ruled that the tape recordings might have been legally admissible on the issue of refuting the defendant's testimony that he did not say "They've got it" since that was a matter for the jury. The court wrote:

But we do not agree that any attempt at impeachment justifies cross-examination about things he did not say and corresponding argument set forth above. In other words, we draw a distinction between evidence of voluntary inculpatory comments by a defendant under arrest, on the one hand, and defendant's silence - the absence of speech - on the other. The comments would be admissible because declarations by an accused then could be deemed his own voluntary statements. The video record would therefore be admissible to show actual speech by defendant but not for any purpose involving an exercise in silence.

Cowan, 3 So. 3d at 449.

The court went on to state that post-arrest custodial silence of a defendant is simply not admissible as evidence of guilt and is not the proper subject of argument. The court cited to the Supreme Court, to the case of Doyle v. Ohio, 426 U.S. 610 (1976).

The U.S. Supreme Court, in Doyle v. Ohio, noted that, in light of the Miranda warnings that are required to be given to an arrested person, every post-arrest silence is "insolubly ambiguous because of what the state is required to advise the person arrested." Doyle v. Ohio at 618.

This is but one example of many instances in which prosecutors attempt to introduce post-arrest silence as a means of establishing guilt. Defense counsel must always stay alert to ensure that this violation of the basic constitutional right is not allowed to happen.