Do I have to answer an officer?

Most people are familiar with the Miranda Rights, “You have the right to remain silent…” but what does that really mean for you? The purpose of the Fifth Amendment is to prevent a defendant from saying something that could incriminate him or herself. For instance, if you admit to being in a park where a shooting occurred, the State can use your statement in Court to prove that you were actually around the scene of a crime. Once you make that statement there’s no going back, it’ll come back to bite you.

But, let’s back up. In order for statements to be used against you, you have to understand your rights which are: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.” Anything you say after those rights have been explained can come in as evidence in Court. Generally speaking, anything you say prior to that cannot.

However, there are exceptions! First, in order for Fifth Amendment rights to attach you much be 1) in custody and 2) being questioned about the circumstances surrounding your custody. If you are not in custody nor being questioned about the case you do not have to be Mirandized and anything you say may be used against you.

Custody is broadly understood. The test to determine whether someone is in custody is whether a reasonable person would feel that they are free to leave a discussion with an officer. There’s a lot of gray area here. An example of being in custody is being handcuffed in the back of a police cruiser. An example of not being in custody is striking up a conversation with an officer at a baseball game. Anything in between is ripe for argument.

Being questioned about the case means being asked questions that could potentially incriminate you. An example of this is “Did you shoot the gun?”. An example of the opposite is “What’s your name?”.

Here’s the last point that you need to take note of: just remaining silent is not enough! The State can use your silence against you if you do not invoke your Fifth Amendment right. You must state something to the effect of “I assert my Fifth Amendment right against self-incrimination”. If you do not, then the State can say something like this at trial “An innocent person would say they’re innocent, but he just remained silent so he must be guilty.”

If an officer asks you your name it’s always a good idea to provide it. Providing your name to an officer is not likely to incriminate you. Moreover, failing to identify yourself could open you up to an additional criminal charge called Obstruction of Justice, a misdemeanor of the second degree.

Understanding the Fifth Amendment is tricky, but you don’t have to navigate criminal charges on your own. If you’re being accused of a crime you can reach me at 216-200-6765.