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The Importance of the Fifth Amendment in Criminal Law


As attorneys who regularly represent clients accused of crimes here in Florida, one of the first pieces of advice that we find ourselves having to remind our clients is to exercise their Fifth Amendment rights; but what, exactly, does this mean?

The Fifth Amendment encompasses your right to remain silent, and it is one of the most well-known (and, arguably, important) rights that you are afforded by the U.S. Constitution. Still, it is rare to encounter a client who has not already spoken with law enforcement before they speak with their own attorney. What this does is set the stage for any and all of this information to be used against the client during trial, and that includes any statements that were completely taken out of context (for example, something that was a question instead of an admission of guilt).

Mistakes Are Permanent

There is no question that law enforcement—being human—sometimes records statements that are incorrect. However, the ripple effect of these types of mistakes can be never-ending: in fact, one mistake has the potential to become the subject of a significant allegation at trial.

Keep in mind that interview summaries are never provided to you (as the interviewee) to check for any potential inaccuracies. This is in stark contrast to, for example, depositions that are taken in preparation for a civil trial. And while the Department of Justice has “encouraged” federal agents to electronically record interviews, this does not amount to an actual, tangible policy change that has a positive effect on our criminal justice system.

Florida Appeals Court Rules Your Fifth Amendment Right Bars Compelled Production of iPhone Password

In late October, the Florida Court of Appeal for the Fourth District ruled that the state could not compel production of a defendant’s iPhone (and related) passwords because doing so would violate the defendant’s Fifth Amendment protection against self-incrimination. This ruling is very important to your privacy rights and the ability for you to protect yourself.

Contact Our Experienced Florida Criminal Defense Attorneys to Find Out More

You always (always) have the right to insist on having a lawyer present before speaking with a federal agent or law enforcement. In other words, as an American, you have the right to remain silent, and you should exercise that right if it appears that you could be accused of something that could lead to a lifetime of consequences for you.

William Wallshein is a former prosecutor who has the experience and knowledge necessary to ensure that you receive the very best representation and protection possible if you have been accused of or questioned about being involved in a potential crime. Contact our West Palm Beach office today to find out more.




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