When Can You Invoke the Fifth Amendment in a New Jersey Criminal Case?

Most people have heard the phrase “pleading the Fifth” or “taking the Fifth” in a criminal case.  You might even be familiar with the “Miranda rights” that police officers read in TV shows and movies, which include the right to remain silent and the warning that anything you say “can and will be used against you in a court of law.”  The Fifth Amendment to the U.S. Constitution includes a few protections you should be aware of and limitations on when and how you can invoke these rights.

The Fifth Amendment can be invoked to avoid answering questions when you are involved in a “custodial interrogation.”  It can also be used to avoid answering questions in a deposition, testimony before a grand jury, or in-court testimony.  You can also use the Fifth Amendment to avoid testifying in your own criminal case.  However, there are some odd areas where people expect the “right to remain silent” to apply that do not actually have strong legal footing.

For help with criminal charges, call the Atlantic City criminal defense lawyers at the Law Offices of John J. Zarych today at (609) 616-4956.

What is the Fifth Amendment and How Does it Affect Criminal Cases in New Jersey?

The Fifth Amendment provides a few legal protections, but the most famous is the protection against testifying against yourself.  The Fifth Amendment is part of the U.S. Constitution (as opposed to the New Jersey Constitution), so it affects criminal defendants’ rights across the country.

Right to Remain Silent

The actual protection in the Constitution says that you cannot be “compelled” to “be a witness against” yourself.  This is taken to mean that the government cannot make you say anything that might hurt your case, and they cannot force you into confessing.  If they do, courts have held that they cannot use that confession against you.

This is commonly formulated as the “right to remain silent,” which is the typical way that people think of this right.  If your only options to keep from admitting guilt are to answer the question or to lie, then you are in trouble either way.  This right to remain silent is an incredibly important right under U.S. law.

The Fifth Amendment also contains a few other protections, namely the right against “double jeopardy” and the Due Process Clause.

Double Jeopardy

Double jeopardy is when the government tries you again for the same crime that you’ve already been acquitted of.  This is illegal, but the state and federal systems can each charge you separately for the same conduct, even if you were acquitted, because the charges come from separate governments.

Due Process

The Due Process Clause says that you need to be given “due process” before they can send you to jail or take away your property or rights.  This is the foundation of a lot of other rules that affect how courts and court cases work, and it is part of the guarantee that you get your “day in court” before being sentenced.

Although these are important rights, the rest of this article will focus on the Fifth Amendment’s guarantee against self-incrimination, a.k.a., the right to remain silent.

Using the Fifth Amendment to Remain Silent During Interrogations in New Jersey

The Fifth Amendment’s right to remain silent has been found to apply during “custodial interrogations.”  To be in a custodial interrogation, there are two parts that must be met: you have to be in custody, and they have to be asking you questions.  If you are not in custody and being asked questions, then the right to remain silent does not apply and they can use your silence against you (e.g., during traffic stops or before arrest).

In Custody

“In custody” is essentially the same as “under arrest,” with some potential caveats.  Usually, being “free to go” is a good measure of whether you are being “detained” or not, but it does not say whether you are “in custody” of the police.

For example, a student being interrogated in an empty classroom with the door open and a teacher present might not be found to be “in custody” even though they are clearly not “free to go.”  Similarly, a driver in the driver’s seat of their car on the side of the road during a traffic stop might not be free to go, but they are not “in custody” either.  The Fifth Amendment right to remain silent would not necessarily apply to these situations.


You are being “interrogated” when the police are asking you questions.  If you are under arrest in the back of a police car, but the cops are not actually talking to you, your right to remain silent will not apply.  If you start talking, they can use anything you say against you without warning you of your rights.

Oddly enough, you also have to know that the person talking to you is an officer for the right to apply.  This means that questions from a confidential informant or undercover cop might not be part of an “interrogation.”

Miranda Rights and Invoking the Right to Remain Silent in New Jersey

If you are in custody and police want to interrogate you, they not only have to respect your right to remain silent, but they have to remind you that you have that right.  This is the central holding of Miranda v. Arizona (1966), and it is the reason we call these warnings the “Miranda warnings” and call the right to remain silent and the right to an attorney your “Miranda rights.”

If police fail to read you your Miranda rights when they are supposed to, then any information you provide can be barred from being used against you.  You need fair warning of your Fifth Amendment rights so you know when you can apply them.

You also have to actually invoke your right to remain silent – usually by saying, “I would like to remain silent,” or “I’m invoking the Fifth Amendment” – before the questions have to stop.  Once the questioning stops, they cannot restart it unless you approach them or you change your mind (usually after your New Jersey criminal defense lawyer is present).

Using the Fifth Amendment During Testimony or Trial in New Jersey

If you are called into a deposition or a grand jury hearing, they will ask you questions you have to answer truthfully.  While you are not “in custody” in this situation, you are still under oath and compelled to answer.  However, you can use the Fifth Amendment here to avoid answering any questions that might lead to criminal guilt.

To invoke your rights in this kind of case, you simply say, “I plead the Fifth,” or “I take the Fifth,” in response to their questions.

Note that this right only applies if you can be charged with a crime for the issues at hand.  If you have been given immunity by prosecutors, you must testify in other hearings since you cannot be convicted for what you say.

You can also use the Fifth Amendment to avoid testifying in your own criminal case.  If you do not want to testify, you cannot be called as a witness against yourself.

For Help with Your Case, Call Our New Jersey Criminal Defense Lawyers Today

For a free review of your case, call the Atlantic City criminal defense lawyers at the Law Offices of John J. Zarych by dialing (609) 616-4956

Our Awards & Recognitions

atlantic city criminal defense lawyer
atlantic city criminal defense lawyers
best atlantic city criminal lawyer
atlantic city criminal lawyer
atlantic city criminal lawyers
atlantic city criminal defense lawyer
atlantic city criminal defense lawyers
best atlantic city criminal lawyer
atlantic city criminal lawyer
atlantic city criminal lawyers

Recent Articles

Free and confidential initial consultations are available 24/7.
Call (609) 445-3533.

Get a Free Case Review

Atlantic County Office
1555 Zion Road Suite 201
Northfield, NJ 08225
Toll Free: (866) 330-4951
Phone: (609) 641-2266
Fax: (609) 641-3677
Cape May Office
106 North Main Street
Cape May Court House, NJ 08210
Toll Free: (866) 330-4951
Phone: (609) 465-6500
Fax: (609) 641-3677
Wildwood Office
3309 New Jersey Avenue
Wildwood, NJ 08260
Toll Free: (866) 330-4951
Phone: (609) 522-3778
Fax: (609) 641-3677
Atlantic City Office
1125 Atlantic Ave Suite 500
Atlantic City, NJ 08401
Toll Free: (866) 330-4951
Phone: (609) 344-9958
Fax: (609) 641-3677
Atlantic City criminal lawyer