You have probably seen many TV "cop" shows such as Dragnet, Miami Vice, Law and Order, and CSI, where the suspense and dramatic music rise to a crescendo, the suspect is arrested and the officer announces to the suspect:
"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."
More recently, Michael Flynn, former national security adviser, has indicated he intends to invoke the Fifth Amendment right against self-incrimination and refuse to answer subpoenas from the U.S. Senate Intelligence Committee. What is meant by "taking (or pleading) the Fifth?"
The Fifth Amendment (Bill of Rights) in the Minnesota and the United States Constitution provides that, no person "shall be compelled to be a witness against himself." This privilege against self-incrimination permits a person to refuse to testify or answer requests for documents where the answer might incriminate him in present or future criminal proceedings.
While this privilege protects against forced testimonial evidence, it does not extend to the compelled production of all physical evidence. It is because of that distinction that a suspect may be required to participate in a lineup, to be photographed and fingerprinted. To have his handwriting analyzed, have his blood tested, or even to speak the words or wear the designated clothing claimed to have been spoked or worn by the wrong doer. Those things are permitted because they produce physical characteristics rather than the contents of the person’s mind.
The privilege protects testimonial evidence. It also extends to answers that would support a criminal conviction, as well as answers that provide a critical link in the chain of evidence needed to prosecute the person.
We can expect considerable debate in federal court over the ability of a corporation or other legal entity (not a person) to invoke the Fifth Amendment. Even though corporations cannot be criminally prosecuted, generally a corporation cannot refuse to provide documents by "taking the Fifth." This is so even if the custodian of the records, such as a corporate officer or employee, might be criminally prosecuted based on what the documents reveal.
Your right to remain silent is a Constitutional protection which you enjoy.
Remember, it’s in your court.
Wright County District Court Judge Steve Halsey and other judges in the 10th District contribute occasional articles to this column. The district includes Wright County.