# A 5th Amendment of the U.S. Constitution question **URL:** \ **Category:** Factual Questions\ **Created:** [July 13, 2013, 8:41pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423 "2013-07-13T20:41:06Z")\ **Posts on this page:** 15\ **Page:** 1
**Author:** ![desertmonk](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@desertmonk](https://boards.straightdope.com/u/desertmonk)\ **Post date:** [July 13, 2013, 8:41pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/1 "2013-07-13T20:41:06Z")
So when it is said that refusing to incriminate oneself cannot be used against the suspect, how does that actually work in court? Let’s say the police come to question a suspect, and literally all the suspect says is “I am exercising my 5th amendment rights” and then calls a lawyer. It goes to trial and the cop goes on stand, he can’t (truthfully) say “the suspect refused to speak to us”, right? ---
**Author:** ![Mr.Kobayashi](https://avatars.discourse-cdn.com/v4/letter/m/4af34b/32.png) [@Mr.Kobayashi](https://boards.straightdope.com/u/Mr.Kobayashi)\ **Post date:** [July 13, 2013, 8:54pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/2 "2013-07-13T20:54:55Z")
[Previous thread](http://boards.straightdope.com/sdmb/showthread.php?t=418264) on the Fifth and where it can and cannot be applied. [Forbes](http://www.forbes.com/sites/rickungar/2013/05/23/issa-to-force-testimony-of-irs-official-who-took-the-fifth-contempt-of-congress-and-court-battle-likely-to-follow/) article on the Fifth in court; > [@](#): > > As a general rule, once a witness testifies in a court of law to a particular fact or set of facts, that witness can no longer avoid cross-examination on the statement of fact(s) by asserting 5th Amendment protections. The witness can only continue to rely on these protections as to facts that have not been the subject of testimony. > > In the case of in Mitchell v. United States, 526 U.S. 314, 321(1999), the U.S. Supreme Court said, > > “It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.” Note: I am not a lawyer nor do I play one on TV. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [July 13, 2013, 8:56pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/3 "2013-07-13T20:56:43Z")
The Fifth Amendment can only be invoked in court or another venue in which you are testifying under oath. Police interrogation is outside its scope. Your scenario can’t happen. ---
**Author:** ![Snnipe\_70E](https://avatars.discourse-cdn.com/v4/letter/s/b5a626/32.png) [@Snnipe\_70E](https://boards.straightdope.com/u/Snnipe_70E)\ **Post date:** [July 13, 2013, 9:09pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/4 "2013-07-13T21:09:38Z")
> [@Exapno\_Mapcase](#): > > The Fifth Amendment can only be invoked in court or another venue in which you are testifying under oath. Police interrogation is outside its scope. Your scenario can’t happen. When the police question you, you can refuse to answer based on your 5th amendment rights. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [July 13, 2013, 9:12pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/5 "2013-07-13T21:12:23Z")
> [@Exapno\_Mapcase](#): > > The Fifth Amendment can only be invoked in court or another venue in which you are testifying under oath. Police interrogation is outside its scope. Your scenario can’t happen. Yeah, so this is completely incorrect. The _Miranda_ right to remain silent during custodial interrogation flows from the Fifth Amendment’s protection against forcible self-incrimination. Let’s hear it for another totally off-base WAG in GQ! ---
**Author:** ![bob\_2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bob_2/32/3341_2.png) [@bob\_2](https://boards.straightdope.com/u/bob_2)\ **Post date:** [July 13, 2013, 10:11pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/6 "2013-07-13T22:11:26Z")
Surely the right to remain silent predates the constitution. It has been part of English law since time immemorial. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [July 13, 2013, 10:19pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/7 "2013-07-13T22:19:02Z")
So far no one has attempted to answer the question in the OP, about whether the prosecutor or the police can give evidence that the accused exercised 5th amendment rights. > [@bob\_2](#): > > Surely the right to remain silent predates the constitution. It has been part of English law since time immemorial. My understanding is that the right to remain silent has been partly removed from English law, by statute. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [July 13, 2013, 10:38pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/8 "2013-07-13T22:38:33Z")
> [@Giles](#): > > So far no one has attempted to answer the question in the OP, about whether the prosecutor or the police can give evidence that the accused exercised 5th amendment rights. Here’s a good summary: [References to the Defendant's Assertion of Miranda Rights](http://nccriminallaw.sog.unc.edu/?p=2757) ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 13, 2013, 10:55pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/9 "2013-07-13T22:55:07Z")
The fact that a defendant has decided not to take the stand cannot be used by the prosecution to imply guilt. I should think it’s the same if they refused to answer police questions. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [July 13, 2013, 11:01pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/10 "2013-07-13T23:01:18Z")
> [@Acsenray](#): > > The fact that a defendant has decided not to take the stand cannot be used by the prosecution to imply guilt. I should think it’s the same if they refused to answer police questions. Basically, yes. The one exception is that the invocation of _Miranda_ rights can be introduced to impeach a defendant’s account of post-arrest conduct. (So, if a defendant testified, “I told the officers I would tell them anything they wanted to know.”, the prosecution can introduce evidence that the defendant actually asserted his right to remain silent.) ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [July 14, 2013, 12:26am UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/11 "2013-07-14T00:26:24Z")
> [@Kimmy\_Gibbler](#): > > Basically, yes. The one exception is that the invocation of _Miranda_ rights can be introduced to impeach a defendant’s account of post-arrest conduct. (So, if a defendant testified, “I told the officers I would tell them anything they wanted to know.”, the prosecution can introduce evidence that the defendant actually asserted his right to remain silent.) It’s a little more nuanced following Salinas v Texas, no? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [July 14, 2013, 1:00am UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/12 "2013-07-14T01:00:15Z")
> [@bob\_2](#): > > Surely the right to remain silent predates the constitution. It has been part of English law since time immemorial. End of the 17th century, actually, which isn’t quite time immemorial. Look, for instance, what happened to John Lilburne. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [July 14, 2013, 2:05am UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/13 "2013-07-14T02:05:16Z")
> [@Doctor\_Who](#): > > It’s a little more nuanced following Salinas v Texas, no? Well, _Salinas_ involved a defendant who did not invoke his _Miranda_ rights; at least, the defendant did not invoke them to the satisfaction of Justice Alito and his pals. In the colloquy given in the OP, where the defendant stated, “I am exercising my 5th amendment rights,” the outcome would be the same pre- and post-_Salinas_, as the defendant has unequivocally exercised his Fifth Amendment protections. Even before _Salinas_, it would have been permissible for the prosecution to have described the consensual responses (nobody doubts that consensual responses post-_Miranda_ warning are admissible) and noted that the interrogation ended when the defendant stopped responding to certain questions. _See_ the paragraph beginning "Second, when a defendant initially agrees to talk to the police, but asserts his Miranda rights before the interview or interrogation is complete, it is probably permissible for an officer to explain in general terms how the interview ended " in the link I gave above. Note, therefore, you can begin to see some justification for the _Salinas_ decision emerge (given that you can describe how the consensual interview ended, can you further note that it was on a very pointed, inculpating question as well?) I’m not saying that _Salinas_ is necessarily good or bad, but it is not straight out of left field. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [July 14, 2013, 5:31pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/14 "2013-07-14T17:31:20Z")
> [@desertmonk](#): > > So when it is said that refusing to incriminate oneself cannot be used against the suspect, how does that actually work in court? Let’s say the police come to question a suspect, and literally all the suspect says is “I am exercising my 5th amendment rights” and then calls a lawyer. It goes to trial and the cop goes on stand, he can’t (truthfully) say “the suspect refused to speak to us”, right? Sure, that would be the truth. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 14, 2013, 5:46pm UTC](https://boards.straightdope.com/t/a-5th-amendment-of-the-u-s-constitution-question/663423/15 "2013-07-14T17:46:08Z")
> [@desertmonk](#): > > Let’s say the police come to question a suspect, and literally all the suspect says is “I am exercising my 5th amendment rights” and then calls a lawyer. It goes to trial and the cop goes on stand, he can’t (truthfully) say “the suspect refused to speak to us”, right? No, the cop can’t say that, if the implication is that the refusal to speak looks bad for the defendant.