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Did I Stutter? I Said I Plead the Fifth

A murder suspect is being questioned by police and says, "I plead the Fifth." Obviously, under Miranda, when a suspect asserts his Fifth Amendment rights, all police questioning must cease. But it doesn't stop. The officer responded, "Plead the Fifth? What?s that?" The officer continues the questioning and the suspect's subsequent answers become the basis of a conviction.

Well the conviction is being appealed to the 9th Circuit on Fifth Amendment grounds, and that's exactly what the police are arguing - the phrase "I plead the Fifth" is insufficient to invoke the right to remain silent because it is too ambiguous. The very witty Howard Bashman over at How Appealing notes that the term Fifth can apply equally to vodka and Beethoven as well as the Bill of Rights?

What cop in the country honestly doesn't understand what that means? What person who has ever seen "Law and Order" doesn't know what that means. Seriously, don't pee on my leg and tell me it's raining. In fact, don't pee on my leg at all. Please. It leaves a stain. And it's gross.

Fortunately, the full Ninth Circuit bench agreed with the defendant common sense and has granted a habeas petition. The majority wrote: "This is not a case where the officers or the court were left scratching their heads as to what [the suspect] meant. Nothing was ambiguous about the statement 'I plead the Fifth.' Ambiguity means 'admitting more than one interpretation or reference' or 'having a double meaning or reference.' The New Shorter Oxford English Dictionary (1993)."

Even the late Chief Justice Rehnquist, who dissented in several cases in Miranda progeny recognized the importance that Fifth Amendment self-incrimination rights have achieved. In voting to reaffirm Miranda in Dickerson v. U.S., Rehnquist writes: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."

These cops should have known better. They were trying to do an end-around the Constitution, and I'm surprised this case had to go all the way to the full Ninth Circuit to reach this self-evident conclusion.

Full post as published by Supreme Dicta on February 18, 2008 (boomark / email).