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The Limitations of the Fifth Amendment

A criminal
The Fifth Amendment grants you the right not to incriminate yourself when you're faced with criminal charges. However, not everyone understands what that means or how it applies to their case.

The Fifth Amendment doesn't mean that you have the right to be silent at all times without consequences - in some cases, criminal investigator and prosecutors may submit a person's silence as incriminating evidence. Learn more about the details of the Fifth Amendment's limitations.

When You Have Not Invoked Your Rights

If you want law enforcement to understand that you're invoking your right to remain silent, you need to say so. You shouldn't simply remain quiet and assume that the authorities will understand that you have invoked your right against self-incrimination - if you do this, law enforcement may use your silence as evidence against you.

Instead, say that you're invoking your Fifth Amendment rights, and you'll be protected from assumptions about what your silence does or does not mean.

When the Government Has Given You Immunity 

The right to avoid self-incrimination applies so that you don't say or do something that the authorities can use against you in the present case or subsequent cases. As such, you don't need to worry if the authorities have promised not to use the information against you; this situation allows you what the law refers to as immunity.

Consider a case where someone has accused you and your best friend of a serious crime. If the authorities suspect that your friend is the actual perpetrator, they may grant you immunity from prosecution so that you can testify or provide information against your friend. If you accept the deal, you must be willing to testify in order to preserve your immunity.

Therefore, the right to avoid self-incrimination does not apply once the authorities give you immunity. Note, however, that the immunity must come from the right authority, which is most cases is the prosecution. In some cases, a judge or even the attorney general must sign the immunity agreement.  

When You Have Disguised Yourself 

Your right against self-incrimination does not allow you to disguise yourself to try to deceive the authorities. The right against self-incrimination means that if you change your physical features in a way that gives the authorities a hard time identifying you, those authorities are allowed to use that against you in a court of law.

Consider a case where the police are in pursuit of a long-haired blond. If you fit the physical description and cut your hair so that you can avoid the police dragnet, you can't use the Fifth Amendment to defend your actions. You cannot claim that you cut your long hair because didn't want to incriminate yourself with your long hair. The Fifth Amendment doesn't apply to body disguise.

When Your Body Has Some Evidence 

Lastly, the right against self-incrimination does not apply for physical evidence that is in your body. Because physical evidence isn't speech, it isn't protected by the Fifth Amendment.

The government doesn't infringe on your rights if the process invades your body to collect evidence such as DNA, semen, or saliva samples. The government can also strip search you or search your body cavities, such as your mouth, as long as they have a search warrant. You will not be able to use the Fifth Amendment to refuse such legal searches.

The right against self-incrimination is not an absolute right; some limitations apply. Don't assume that you are safe against self-incrimination just because of the Fifth Amendment. If you face a criminal charge, contact Joe D. Gonzales & Associates. Our knowledge and experience will give you the best criminal defense you need.