Self Incrimination & the 5th Amendment: A Private Investigator’s View

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Self Incrimination & the 5th Amendment: A Private Investigator’s View

Self incrimination. The 5th Amendment. We are all very familiar with those terms, or at least we have all heard them. Many people think that when you “plead the 5th” that you do so because you are guilty of something. We have all seen a TV show or movie where the officer reads the bad guy his Miranda warning. But you might not be thinking of the right against self incrimination in the correct way. Read the definitions of incriminate below:

1) Make someone appear guilty of a crime or wrongdoing. 

2) Strongly imply the guilt of someone.

At first glance you might think these refer to an individual who is guilty of wrongdoing. But look closely at the first definition: to make someone appear guilty of a crime. When the police begin to investigate a crime, they are looking for suspects (individuals who might have committed the crime). Good detective work considers all the possibilities, and then uses evidence to exclude those that did not commit the crime, and use evidence to determine who did. But with many crimes, who committed the crime is not always so clear. Many cases that go to trial often involve circumstantial evidence. There is often no video of the crime, no eye-witness to the act. There are just small pieces, that when looked at as a whole, imply guilt. Often, an individual’s self incrimination has made them appear guilty, but not necessarily showed them to be guilty.

Have you ever told a lie? Just fudged the truth a little? Omitted sharing a fact because it was embarrassing or unflattering? Have you ever remembered something incorrectly? Ever started telling a story, only to have your spouse or friend correct you right in the middle of it? How about when you are nervous, or scared, or upset… ever get a fact or detail wrong, forget something, or say one thing when you meant something else, and not even realize it?

If so, then you had better be careful if you are ever talking to the police. Why? Because if you do anything of those things I mentioned when talking to the police, you have “lied.” That will send you to the top of any suspect list. It will be mentioned at a trial over and over again. Lies. Inconsistencies. At your trial, the prosecutor will use these things to “show” you are guilty. Why? Because they make you appear guilty!

For many people, the idea of not talking to a police officer or a detective is counter-intuitive. They are the authority figures, so we should obey and cooperate. We think only a guilty person would exercise their 5th Amendment rights. But that is wrong. A smart person should ALWAYS exercises their 5th Amendment right; not because you are guilty, but because we have an adversarial legal system. If you are being questioned by the police, you are a potential suspect. At the start of a case, everyone is a suspect until they rule you out. But just because you “appear” guilty in one person’s opinion does not mean you are guilty.

courtroom - self incrimination - dallas private investigator

I am not a lawyer. But as a private investigator, I get the opportunity to work with lawyers on legal cases in which people have been accused of all different types of crimes. I have never been involved with a case where a suspect’s statements to the police ever benefitted them. At some point, they get something wrong, tell a lie (that might have no real significance to the case), or make some other mistake during hours of talking and interviewing that then makes them “appear” guilty. Or someone else gets a fact wrong, and their recollection contradicts what the suspect said. Now the police think the suspect has lied, and thus appears guilty.

I believe in the importance of the police. I have friends who are on police forces. They are good, hard working people. I believe in our legal system. Attorneys on both sides strive to do their jobs to the best of their abilities. But it is critically important for every citizen to not only know their rights, but also to exercise them.

The right to avoid self incrimination is one of the most important rights we have, because the government can and will take away your freedom. It should be hard for the government to do that. Appearing guilty should not be enough. You must be proven guilty to the satisfaction of a jury. Let the police and the prosecutors prove that you are. It is their job in a court proceeding to try to have someone found guilty and have them punished. Meanwhile attorneys, and the private investigators they hire, will work just as hard, using the facts, or the lack of them, to show that you are not guilty. That is what keeps our system honest and fair.

Please remember that the right you have against self incrimination is important, and that you should exercise it at every opportunity. I believe 100% that you will never regret asserting that right, but you sure could regret not having exercised it.


Below is a video of Professor James Duane, a professor at Regent University School of Law. I have shared this before. It is a long video. But if you ever find yourself in any situation where you might be arrested, or even questioned, by any law enforcement officer or agent, you will be really glad you know this stuff. Unless you are an experienced lawyer, I promise you will learn something. You will also realize why you must learn to be quiet and that you do not talk to the police. Period.




Keith Owens is the owner and founder of Owens Investigations, LLC.


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