Rhode Island Criminal Defense Lawyer James E. Smith Posts Article on The 5th Amendment.

Our Fifth Amendment Right Against Self Incrimination

An Unfairly Misunderstood Right Explained

     The Fifth Amendment to the United States Constitution may well be the most powerful defense a person has available when dealing with agents for the state and there is absolutely no shame nor legal harm in flexing that muscle!

     How many times have you heard “If he didn’t do anything, then he’s got nothing to hide!” or “She’s ‘taking the fifth’ so she must be guilty.”  Each time I hear statements like these I cringe. Yet we are bombarded with this nonsense on a regular basis from as far away as Hollywood, to as close as local radio talk show programs, their hosts and the pesky yet loyal FTLT’ers.

     Our Fifth Amendment, along with nine other amendments, collectively, the Bill of Rights was ratified on December 15, 1791.  Its roots run deep, finding connections with the Magna Carter, signed in 1215.

     Specifically with regard to our right to keep silent it states that no one “shall be compelled in any criminal case to be a witness against himself…” and believe it or not, the right was designed to protect INNOCENT people.  Justice Robert Jackson, a former prosecutor, General Counsel for the Bureau of Internal Revenue, the Securities and Exchange Commission, Assistant US Attorney General and he was even the chief prosecutor for the Nuremburg Trials, said while sitting as a Justice of the United States Supreme Court “any lawyer worth his salt will tell a suspect in no uncertain terms to make no statements to the police under any circumstances.

     The truth is, we have no way of knowing whether any statement made to the police might at some point be looked upon by a prosecutor as relevant for something else, a different investigation possibly.  It is my experience that clients tend to get somwhat exuberant in professing their innocence to the police and that such exuberance leads to flat out lying.  That’s dangerous.  Just ask Jeffrey Scott Hornoff.  He was a Warwick, RI police officer who was found guilty of murder.  He spent six years in prison for a crime he did not commit.  Had it not been for the murderer’s guilty conscience and subsequent confession, Mr. Hornoff might still be in prison.  The point being that Mr. Hornoff lied to the police regarding his relationship with the victim. I’m sure the jury must have thought that if he lied about that, then he would lie about his innocence.  That lie made it more likely that Mr. Hornoff was convicted based upon his lie rather than whether he actually committed the crime.  Had he just remained silent, the prosecution could not have damaged his credibility with those contradictory statements.

     Our Constitution makes it difficult for a prosecutor and the police to convict someone of a crime.  It should!  We live in a free society and we value our freedom so much that we’ve developed a system that places 100% of the burden on the government when it tries to take away that freedom.  Why make it easy?  In any event, prosecuting someone takes time.  Why rush into an admission by speaking with the police?  There’s plenty of time for that.  Time also provides the accused with the opportunity to speak with counsel.  Only then (if at all) should a person make any admission.

     Remember if you’ve been arrested remain silent!  You may find it difficult to do so because the police are very good at cajoling people into making statements, and as human beings, we’re compelled to defend ourselves.  But, when was the last time you heard of someone who was able to convince the police not to make an arrest based solely on the person’s own protestations?  Never. You’ll talk yourself into an arrest long before you talk yourself out of one.


RI Criminal Defense Lawyer



About RI Criminal Defense Lawyer

My name is James E. Smith. I am a criminal defense lawyer in Rhode Island. If you have been arrested, or if you have been contacted by the police, call immediately for competent, skilled advise. 24/7 401-649-0335
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