The Fifth, Before Arrest

Fifth Amendment gives citizens of the United States the right to remain silent, if they believe that speaking would incriminate them or in some way connect them to a crime that was committed. Not everyone is aware of this, however, and so in 1966 the case of Miranda v. Arizona established that police must anyone they arrest of their rights before they are questioned. Failure to give this “Miranda warning” could mean that any confession given afterwards must be thrown out.

But what about questioning before arrest? The Fifth Amendment protects all citizens all the time, but police are under no obligation to inform suspects of this before they are arrested. Anything said and any questions answered before an arrest can be used in trial against the defendant, whether or not the defendant was aware of the Fifth Amendment at the time.

So anyone who thinks they might be a suspect in a crime would be well advised to remain silent and politely refuse to answer any questions posed to them on the matter until they consult an attorney.

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A Note on the Fifth by Boarder on August 31st, 2007

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