Could remaining silent during the process of an arrest be used against you during court? Doesn’t the Fifth Amendment give you the right to remain silent? Actually, it doesn’t.

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During an arrest, you aren’t read the Fifth Amendment. You are read your Miranda Rights: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” This is not the Fifth Amendment, which states: “[No person] … shall be compelled in any criminal case to be a witness against himself…” While this amendment can be interpreted in many ways, many people agree that it’s saying no one can be forced to self-incriminate themselves.

Why was the Fifth Amendment created?

The Fifth Amendment was created due to an immense amount of torture and interrogation the Puritans endured in 17th century England due to their religious beliefs. During an interrogation, if the Puritans remained silent, they were often presumed “guilty.” When the Puritans fled to America, they brought the idea of not being forced to admit guilt with them and it was eventually written into the Bill of Rights.

What if I plead the Fifth?

The Miranda Rights give you the right to remain silent and the Fifth Amendment gives you the right to not be forced to admit guilt. So, in both cases, you are allowed to remain silent. However, is remaining silent enough? No, it’s not.

We’ve all heard the phrase “I plead the Fifth.” To plead is an active verb. A person who pleads, or says he or she wants to induce their right to not self-incriminate, has to actually voice this decision to law enforcement.

Has there been a case when remaining silent wasn’t enough?

A case where the defendant remained silent, yet did not express his decision to remain silent, is People v. Tom. Richard Tom drove under the influence of alcohol and hit a car with a mother and her two daughters. One daughter died, and the mother and other daughter were injured. At the scene, Tom sat in the back of a police car and remained silent. During trial, the prosecutor repeatedly stated that since Tom did not ask about how the victims were doing, his silence was an “evidence of guilt.” Tom was sentenced to seven years in prison for manslaughter.

While you do have a right to remain silent, make sure you express that you are choosing to remain silent. Simply staying silent is not enough.

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