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A New Way To Take The Fifth

Melinda Morris
By: Melinda Morris
Aug. 16 2020

When police want to question a suspect, by law they should read a Miranda warning.  Often, individuals refer to this as being read their “rights.”

A Miranda warning in Florida should include the following:

  1. You have the right to remain silent.
  2. Anything you say can and will be used against you in a court of law.
  3. You have the right to talk to a lawyer and have him(or her) present with you while you are being questioned.
  4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
  5. You can decide at any time to exercise these rights and not answer any questions or make any statements.

Do you understand each of these rights I have explained to you?

Having these rights in mind, do you wish to talk to us now?

After this point, an individual is faced with the choice of making statements that could be used against him or her in a court of law, or remaining silent – essentially to assert the Fifth Amendment right to refuse to be a witness against themselves.

But what exactly is the best way to invoke your Fifth Amendment rights? James J. Duane, a professor at Regent Law School in Virginia Beach and the National Trial Advocacy College at the University of Virginia School of Law answered this question in, “The Right to Remain Silent: A New Answer to an Old Question,” published in Criminal Justice, Volume 25, Number 2, by the American Bar Association, and the creative answer is worth sharing here:

Traditional answers, including those seen on TV and in the movies have included, “‘I refuse to answer on the ground that my answer may tend to incriminate me” and “‘On the advice of counsel, I decline to answer.’”

Professor Duane suggests that while these answers are perfectly legal, legitimate and effective, they sometimes give the impression that there may be an element of guilt in the answer itself and the underlying refusal to answer any questions.

Professor Duane notes that the Supreme Court has never held, and has in fact rejected the suggestion, “that the privilege [Fifth Amendment] is unavailable to those who claim innocence.” (Ohio v. Reiner, 532 U.S. 17, 21 (2001).) The Court has emphasized that one of the Fifth Amendment’s “basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances,” and has repeatedly affirmed that “truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”

Professor Duane’s suggested answer is worth considering and noting if one is ever in the position of being questioned by law enforcement and removes the underlying stigma of refusing to answer questions posed by law enforcement:

“On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which—according to the United States Supreme Court—protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit.”

Given this is a little more difficult of a response to memorize, but it is largely more effective than the traditional responses many have gleaned from their favorite law and order TV series.

If you have had your Miranda rights read to you, call the Morris Law Firm at 727-388-4736, Option 1 for New Clients for a strategic review of your case.  The Morris Law Firm handles misdemeanor and felony criminal cases throughout the Tampa Bay area (Pinellas, Hillsborough, Pasco, Manatee Sarasota) and is dedicated to criminal defense.