Mark L. Horwitz
The founding fathers of this country, when drafting the Constitution of the United States, required that ten amendments be included in the Constitution. The Fifth Amendment contains many rights designed to protect individuals from governmental abuses which the colonies had suffered prior to the Revolutionary war. One of the important guarantees in the Fifth Amendment is the right against self incrimination.
Many believe that if a person invokes their Fifth Amendment right and refuses to speak with law enforcement that such a person must be guilty. This is simply not correct.
The drafters of the Constitution were aware of harsh tactics to force a confession including torture, and other forms of abuse. The Supreme Court of the United States, has on more than one occasion, written that the Fifth Amendment’s right against self incrimination is to protect the innocent who may otherwise be ensnarled by ambiguous circumstances and complex laws.
Today’s federal and state criminal laws go far beyond the crimes that were present in America upon its independence. Violation of complex laws and government regulations can result in criminal charges even if the person did not intend to commit a crime. The right to remain silent and not talk with criminal investigators is especially important due to the complexities of the criminal laws.
Speaking with law enforcement officers conducting an investigation entails certain risks that may cause individuals to be charged with a crime even if they are innocent. Some of these risks include: 1) Law enforcement officers may misunderstand the statements given. 2) The individual, when answering a question, may in good faith make a mistake due to incorrect memory or misunderstanding of the question. 3) The investigator may incorrectly recount the statements of the person interviewed when later preparing a written report. 4) While not often the case, an officer may intentionally lie concerning a statement. If any of these risks materialized as a result of an interview, the chances of an arrest and the filing of a criminal case goes up.
Many people are surprised to learn that federal law enforcement officers do not routinely record interviews. The end result of this failure to record an interview is that at trial the jury is presented with the investigators interpretation of what the citizen said rather than what was actually said.
A person’s physical and mental condition at the time of an interview may also have an impact on whether the information provided is correct. Recent studies have concluded that false confessions are more likely from a person who has not had sufficient sleep for extended periods. Over the past few years, there have been several reported cases of convictions resulting from false confessions.
The right to remain silent and invoke one’s privilege against self incrimination is no less important today than when the United States Constitution was drafted. As citizens we should realize that the Fifth Amendment’s provision “nor shall (any person) be compelled in any criminal case to be a witness against himself” is to protect the innocent and its invocation should not be accompanied by a presumption of guilt.