Why Plead the 5th?

People ask me all the time: Hey, Marc Lopez—why are you always telling people to plead the Fifth? I think it’s because I truly believe in my heart that it’s objectively better to be safe than to be sorry. It’s the same reason I’ve raised my daughter to look both ways before crossing the street. Don’t take unnecessary risks. Proceed with caution. Plead the Fifth. These are all sound pieces of advice, because there are hardly any times where it would be inappropriate to apply them.

If you’re not moved by the wisdom of a criminal defense attorney and former prosecutor with more than a decade of legal experience, how about some thoughts directly from the Mount Olympus of American law, the Supreme Court of the United States? In Ullmann v. U.S., the Court observed that the Fifth Amendment’s “privilege against self-incrimination serves as a protection to the innocent, as well as to the guilty.” Later that same year, in Slochower v. Board of Education, the Court elaborated that this privilege “serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”

Maybe you’re still skeptical. Maybe you think that ensnared by ambiguous circumstances sounds suspiciously like lawyer-talk for caught with his hand in the cookie jar. For those of you who think I’m overstating the Fifth Amendment’s importance, I’d like to remind you that we have more laws now than we’ve ever had before. In case you’re still having trouble connecting the dots, here’s Justice Neil Gorsuch in his opinion from Nieves v. Bartlett: “History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something” (emphasis added). If that’s not a good reason to be careful about talking to the police, I don’t know what is.

If speech is silver, then silence is golden.

In 2014, Yale Law Professor Stephen Carter raised eyebrows by asserting that “more than 70 percent of American adults have committed a crime that could lead to imprisonment.” When PolitiFact followed up with a survey of criminal law professors, most of them agreed with this estimate. Whether we’re talking about pirating digital media, fudging tax numbers, or sharing painkillers with a friend, it seems that potential criminal consequences wait for us at almost every turn. At the federal level, there’s an infamous case where a man served six years in prison for shipping lobster tails incorrectly. Locally speaking, back when I was a young deputy prosecutor, I was told to take a case to trial where a man was facing a misdemeanor conviction for catching an undersized fish. This man stood to lose his job with the Department of Correction, and I refused to try the case. My protest meant little, however, as my superior immediately called in a replacement who had no problem with prosecutorial pettiness. The fisherman in question was convicted at trial, and he did, in fact, lose his job. Following the letter of the law does not always lead to a just result.

For me, this question is not just a matter of professional convenience, but of personal conviction. My dad was a federal agent with the Drug Enforcement Administration, and when I was a little boy, he told me if I was ever stopped and questioned by the police, I should ask for an attorney and wait for them to arrive. When a law enforcement official of any type asks to speak with you—whether it’s the Department of Natural Resources, the Internal Revenue Service, or the local police department—the only safe response is to invoke the Fifth Amendment and contact your attorney. Safe is better than sorry, which is why I tell anyone who will listen to always plead the Fifth.