We’ve all seen movies and TV shows where someone says he is “taking the 5th.” A diabolical villain sits on the witness stand at trial, craftily dodging questions and avoiding saying anything incriminating. When the fiery prosecutor has had enough he explodes, “tell me why you did it!!!” The defendant, smug as ever, defiantly asserts that he won’t answer any more questions because he’s taking the 5th. The prosecutor, enraged and stifled, never saw it coming. The jury, expecting to hear what it already suspects, gasps in amazement as the judge allows the defendant to step down.
Of course, stories like this are incredibly embellished and unrealistic, but the story line does have some basis in actual law. ”The 5th” refers to the 5th Amendment of the United States Constitution, which states in part: “No person shall be…compelled in any criminal case to be a witness against himself.” Basically, no one can be forced to admit that he is guilty. This short section is the source of the right against self-incrimination, one of the strongest and most important Constitutional rights.
In 1966, the United States Supreme Court decided Miranda v. Arizona, the famous case that recognized the now well-known Miranda rights. Again, we’ve all seen it before in countless shows and movies where a police officer reads someone his rights: after a long chase through backyards, rush hour traffic, and off the top of a burning building, the cop tackles the suspect, puts him in handcuffs, and starts reciting something along these lines: “you have the right to remain silent; anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” These lines come straight from the Court’s opinion in Miranda, so you can thank the Supreme Court for these incredible cinematic moments, but what you should be thankful for is the protection that those lines describe.
The Court in Miranda explained that police have long employed coercive tactics to elicit confessions from the accused. Physical abuse, such as beating and putting cigarettes out on a suspect, were no doubt abuses of basic human rights but psychological tactics and intimidation were “equally destructive of human dignity.” Miranda at 457. The Court, often quoting from police manuals, explained at length various methods of getting a suspect to confess to a crime. Secluding the suspect in a room in a police station or other unfamiliar, intimidating environment was the key starting point. Once there, the interrogator was relentless in his goal of getting the suspect to confess. The suspect is treated as though there is no question of his guilt and the sole purpose of the interrogation is to confirm all the details. The interrogating officers may act sympathetic to the suspect, diminish the seriousness of the crime, and even offer reasonable sounding reasons or excuses why he might have done it. The interrogation would last hours or days, as long as it took to get a confession. Those psychological tactics, refined and honed over years of practice, had become extremely effective and widespread.
What the Court did in Miranda was require police to inform people being questioned by police of their 5th Amendment rights before they are interrogated while in police custody. These rights, now known as the Miranda rights, (right to remain silent and to have an attorney present during interrogation) protect people from the psychological tricks and techniques designed to induce them to waive their right to remain silent. The right to remain silent is so precious and important that people have the right to have an attorney present at the interrogation to make sure that the person does not succumb to the relentless interrogator. Once a suspect asks for an attorney, the interrogation must stop. Anything the person says, whether incriminating or otherwise, cannot be used against him at trial.
So when is a confession not a confession? When the person who gives it is in police custody and has asked for an attorney. This is why it is extremely important to contact your attorney if the police take you into custody to question you. Even if the police don’t arrest you, you still have the right to have an attorney present if they are holding you.