Fifth Amendment Right To Counsel

Undisputed Legal 

Constitutional Requirement

1. No person shall be compelled in any criminal case to be a witness against him/herself. (Fifth Amendment, U.S. Constitution)

  1. Right must be asserted to take effect.
  2. The provision prevents the defendant from being called as a witness for the prosecution in a criminal case.
  3. The provision prevents the prosecution or any witness from commenting upon the defendant’s failure to take the stand or to answer questions.
  4. Limited to testimonial evidence (oral or written).

• Protects an individual from being forced to decrypt hard drive contents. United States v. Doe (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011), 670 F.3d 1335 (11th Cor. 2012).

2. No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense. (Wash. Const. Art. I, § 9).

  1. The state constitution is co-extensive with the federal constitution. See State v. Russell, 125 Wn.2d 24, 59-62, 882 P.2d 747 (1994) (refusing to extend greater protection through Const. Art. 1, § 9 than that provided by the federal constitution to the use of un-Mirandized statements); State v. Earls, 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991). (“[R]esort to the Gunwale analysis is unnecessary because this court has already held that the protection of article 1, section 9 is coextensive with, not broader than, the protection of the Fifth Amendment.”); Dutil v. State, 93 Wn.2d 84, 606 P.2d 269 (1980) (state constitution provides no greater protection for minors waiving their right to remain silent than is provided by the Fifth Amendment); State v. Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971) (“The Washington constitutional provision against self-incrimination envisions the same guarantee as that provided in the federal constitution. There is no compelling justification for its expansion.”).
  2. Concerning Miranda, Const. art. I, § 9 is arguably less protective than the Fifth Amendment. In numerous cases, the Washington Supreme Court stated that it was unnecessary to advise a suspect that she was not obligated to answer questions. See, e.g., State v. Brownlow, 89 Wash. 582, 154 P. 1099 (1916); State v. Boyer, 61 Wn.2d 484, 486-87, 378 P.2d 936 (1963). In fact, less than a year before the United States Supreme Court decided Miranda; the Court indicated in State v. Craig, 67 Wn.2d 77, 83, 406 P.2d 599 (1965), that:


Everyone suspected of a crime or charged therewith has the right to voluntarily speak or act, or refrain from doing so, without having sections of the state and federal constitutions recited to him before he can exercise that right… Where such voluntary act tends to link him with [a] crime …, should we disregard his freedom to speak and write to save him, the wrongdoer, from paying for his crime and forget his victims entirely? If so, we are guilty of coddling the criminal and are, in effect abrogating the laws enacted for the protection of society in its person and property.


3. Fifth Amendment right can take effect in one of two ways:

  1. The suspect states, “I do not wish to answer any questions without my lawyer.”
  2. The suspect is taken into custody and interrogated by a police officer.

i. Once a person is taken “into custody” (advised they are under arrest and/or have their freedom of movement curtailed to the same extent as that normally associated with formal arrest) and “interrogated,” any statement is presumed to be involuntary.

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