Members Only | August 15, 2022 | Reading Time: 4 minutes

Someone like Trump pleading the Fifth is funny, but the right against self-incrimination is no laughing matter

It’s just too perfect considering that Trump said in 2016 that, “if you’re innocent, why are you taking the Fifth Amendment?” 


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It was a pretty bad week for Donald Trump. 

Last week, the FBI searched his home to retrieve stolen classified documents. He was deposed by New York state Attorney General Tish James, part of her investigation into his allegedly corrupt business practices. During that deposition, Trump pleaded the Fifth for every question other than his name, over 440 times

If you’re like me, that bad week was good to watch. 

What I’m saying is that, in our gleeful enjoyment of the FBI’s searching of Mar-a-Lago, we can’t expect anyone to cut corners or treat “pleading the Fifth” as a confession of criminal guilt.

If you’ve been awake the past six years, or knew anything about the history of the Trump Organization before he ran for president, you’re far from surprised that he’s being investigated at multiple levels of government. Many of us have been waiting for this day and counting the seconds until he finally got what was coming to him. 

As much as I hope that the former president is charged and found guilty in every court possible, however, I also know we can’t forget the importance of criminal procedure rights in the process.

It’s not a confession
Wait, hear me out. 

I’m not criticizing Tish James or Merrick Garland or anyone else who is investigating Trump. As far as I can tell every investigation is acting responsibly and acting only when there is significant evidence. None are corrupt or witch hunts or even politically motivated. 

But what I’m saying is that, in our gleeful enjoyment of the FBI’s searching of Mar-a-Lago, we can’t expect anyone to cut corners or treat “pleading the Fifth” as a confession of criminal guilt.

I know, I know.

It’s just too perfect considering that Trump said in 2016 that, “if you’re innocent, why are you taking the Fifth Amendment?” 

But we know Trump spews nonsense to insult whoever is annoying him that day. We know there’s no consistency to his thinking. So what’s the point in emphasizing hypocrisy? Especially since he sent an email addressing his change of heart by claiming he was innocent but had to take the Fifth because the investigation was a witch hunt or some such nonsense. We aren’t going to turn any Trump supporters against him because he pleaded the Fifth in a deposition. 

The Fifth’s origins
I really couldn’t care less how we talk about Trump in the press. I have no doubt he committed many crimes in and out of office. I highly doubt he will ever be held accountable for any of them. 

Unfortunately, when we mock Trump taking the Fifth and implying that it is indicative of guilt, we’re contributing to a bigger problem with how we view criminal defendants in this country. 

Far too often juries decide the guilt or innocence of someone based on preconceived notions. Statements to the police are often twisted. There are many ways to coerce a confession. The last thing we, especially liberals, should be doing is encouraging an impression that exercising one’s right against self-incrimination indicates guilt.

The right against self-incrimination (ie, pleading the Fifth) developed as part of the adversarial criminal trial in the 18th century. Earlier criminal trials (from the 16th century) barred defense counsel. 

A prosecutor brought charges using the accuser’s testimony. It was moreover assumed that the innocent could successfully defend themselves in court on account of being innocent, maybe with a little guidance from the judge. While defendants were not forced to speak, doing so was their only defense. Silence offered no protection. 

Defense counsel began to be allowed in the 18th century for certain felonies. That provided the option of defense by proxy and allowed the defendant to remain quiet. At trial, the defense’s job was to test the prosecution’s case, not necessarily to speak in their own defense.

The right against self-incrimination is more expansive than simply not answering questions at trial. The entire protection against coerced confessions rests on the right to remain silent and the protection against self-incrimination. While one only needs to “plead the Fifth” when under oath, it serves the same function as remaining silent in an interrogation. Without the option to take the Fifth under oath, all one need do is swear someone in and coerce a confession. 

In 1966’s Miranda, the Supreme Court ruled not only that suspects have a right against self-incrimination, but that suspects must be made aware of that right or their statements are not voluntary. 

Eroding Miranda rights
This case created the “Miranda warning” that many can recite from watching cop shows. While the right against self-incrimination is intact, and police must “Mirandize” suspects, conservatives have successfully chipped away at its protections in the last few years. 

In Berghuis v. Thompkins in 2010, the court ruled that suspects must assert their right to remain silent “unambiguously.” They couldn’t simply remain silent and giving short one word answers could indicate a desire to waive their right. 

In Salinas v. Texas in 2013, the court ruled that silence can be used against a suspect unless they explicitly invoke their Miranda rights even if they aren’t in custody, and haven’t been read their rights. In his dissent Justice Stephen Breyer asked, “How can an individual who is not a lawyer know that these particular words are legally magic?” 

This past term, in Vega v. Tekoh, the court ruled that if suspects are not warned of their Miranda rights and self-incriminating evidence is somehow used at trial, the police officer cannot be sued for damages. So if the trial judge does not protect the defendant’s rights against self-incrimination, defendants can’t sue afterwards.

Fun, not funny
I know it’s fun to mock Trump taking the Fifth, but we must resist the impulse to contribute to the weakening of the right against criminal self-incrimination (though unfortunately for the former president, in civil trials, pleading the Fifth can be used to indicate guilt). 

The right against self-incrimination is what protects the public from coerced confessions that are too easy to get from innocent people. 

After all, it was Trump himself who famously took out a full page newspaper ad against the Central Park Five who were innocent but convicted nevertheless based on coerced confessions. 

We cannot feed the perception that silence is guilt and that the innocent have nothing to hide. We should all guard ourselves against speaking to police or saying anything that could be used against us.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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