Most individuals have a general idea of the protections in the Fifth Amendment of the U.S. Constitution. Among other rights and privileges, it gives a criminal defendant the right to remain silent after an arrest. Few people realize that, in addition to complicating evidentiary issues, any derogation of those rights can expose them to claims of violating the defendant’s civil rights.

If you have been arrested in New York and you believe you were coerced into waiving your Fifth Amendment privileges, contact Friedman, Levy, Goldfarb, Green & Bagley, P.C. You can consult with a New York City civil rights attorney about your opportunity to recover damages.

The Basics: What Does it Mean to Plead the Fifth?

Defendants who have been arrested or indicted for criminal conduct can refuse to submit to interviews or to speak with the police. Criminal defendants are also not obligated to testify at their trials. In addition, juries are not allowed to draw any conclusions because a defendant is not testifying in their defense. In all criminal trials, a prosecutor must prove the defendant’s guilt beyond a reasonable doubt with evidence other than the defendant’s statements.

Can a Defendant Waive Fifth Amendment Privileges?

Criminal defendants can waive their rights to Plead the Fifth if they receive warnings of the consequences and also verify their understanding of it.  In law enforcement language, the waiver must be “voluntary, intelligent, and knowing.” A defendant who agrees to testify at their criminal trial cannot selectively waive this right. Once the defendant takes the stand, they must respond to all questions from both the prosecutor and the defendant’s attorney.

Conversely, a party or a witness in a civil trial can selectively claim a right to Plead the Fifth. They can do this in response to any questions that may implicate them in a crime and can testify on other matters that do not have the same consequences.

What if a Defendant is Not Warned of the Fifth Amendment Right, or is Coerced into Waiving That Right?

Any statements from a defendant who is placed under arrest but is not warned of their right to plead the fifth will not be admitted at their criminal trial. The situation may be more complicated when a criminal defendant waives that right.

Law enforcement authorities have been trained to read the famous Miranda warning to a criminal defendant (i.e., “You have a right to remain silent, etc.”) multiple times. They must also procure a written waiver of a right to Plead the Fifth from a defendant before that person makes any statements. However, under some circumstances, those waivers may not be valid, including:

  • when a policeman convinces a defendant to sign the waiver with representations that their statements will not be used at any subsequent trials.
  • when the consequences of the waiver are not fully explained to a defendant or they are confused or incapable of comprehending those consequences.
  • when law enforcement authorities threaten violence or actions against a defendant’s family members if the waiver is not signed.
  • when the police use tricks or ruses to get a defendant’s signature on a waiver (note, however, that the police are free to use deception during questioning after a Fifth Amendment waiver is signed).    

How Can a Person Protect Their Right to Plead the Fifth?

When interacting with law enforcement authorities, every person’s best course of action will be to retain an experienced civil rights lawyer to be present during any discussions or interviews. The defendant’s lawyer will confirm that the authorities are staying within the narrow limits that are set for them in their discussions. If an attorney is not present, a person’s next best response is not to answer any questions or volunteer any information to the police.

Call Friedman, Levy, Goldfarb, Green & Bagley, P.C. to Protect Your Right to Plead the Fifth

If you believe that your civil rights have been violated by police who refused your right to Plead the Fifth, please contact us at Friedman, Levy, Goldfarb, Green & Bagley, P.C. You can consult with a New York City civil rights lawyer about what you can do to gain redress for violations of your civil rights.

We represent individuals in the New York City metropolitan area. We advocate for those who have suffered harm, including injuries that flow from violations of their civil rights. We will review your case for free and fight to hold the parties who caused your civil rights violations accountable for their conduct.  

 Additional Resources:

  1. Waiving the Fifth Amendment Privileges.
  2. Miranda Waivers and Implications.
  3. The Fifth Amendment Criminal Procedure Clauses.