You Have the Right to Remain Innocent

by James J. Duane

If you are asked any question by a police officer or a government agent and you realize that it is not in your best interest to answer, you should not mention the Fifth Amendment privilege or tell the police that you wish to exercise your right to avoid incriminating yourself. In this day and age, there is too great a danger that the police and the prosecutor might later persuade the judge to use that statement against you as evidence of your guilt. And if they do, to make matters much worse, you have no guarantee that the FBI agent in your case will not slightly misremember your exact words. Even if you take care to say, “I wish to invoke my right under the Fifth Amendment against self-incrimination,” you have no guarantee that the agent will not testify months later at your trial that “he said he would not talk because the truth would incriminate him.” Even if the officer only gets a few words wrong, it only takes a slight rewording of the privilege to make it sound like a confession. So what do you do instead? Instead mention your Sixth Amendment right to a lawyer, and tell the police that you want a lawyer. Is that honest? Not entirely, because it sounds like you are implying that you might be willing to talk to them after a lawyer shows up, and of course that is not true, and your lawyer will not agree to that. But a little dishonesty is a small price to pay to defend your freedom and your constitutional rights, especially when dealing with police officers who will li...