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The Fifth Amendment: The Ultimate Protection from Government

Last time we talked about the fundamental importance of the right to remain silent. Experienced criminal defense attorneys will all tell you that half of their clients wouldn’t be clients if they had only invoked their right to remain silent. When the police question you about a burglary and you say, “I was only looking around,” or something equally ill advised, you have just proven an essential element of a felony….i.e. that YOU (not someone else) are the person who was there. Now, instead of forcing the prosecutor to prove you were there by convincing a jury of your peers beyond a reasonable doubt that you were in fact the person who was seen at the crime scene, so to speak, they simply repeat what you said in court to the jury. Just as Miranda warns us: Anything you say can and will be used against you in a court of law. And, it will.

So, when you give up your right to remain silent you are pretty much also giving up your right to be presumed innocent and to force the government to prove every single element of the crime charged beyond a reasonable doubt. These are fundamental rights under our Constitution. This stuff was so important to the Founders that the first thing they did, once they had a chance to digest their monumental work drafting the U.S. Constitution, was to go back and improve it by adding the Bill of Rights.

These protections are the way the Founders gave some of the power they had created for their government back to the people. Protecting the people from that very government, in fact. This is not a forum for discussing the Second Amendment and the formation of militias……yet…….but some argue that the right to bear arms is the best example of how intensely the Founders believed that the people needed to be protected from the government. So intensely that they gave the people a way to overthrow the government that they had just created.

We don’t need to get into all that. But, if the Founders thought armed resistance to the power of government was acceptable, why do so many people find it so hard to resist the government with silence? The right to remain silent is one of the most important ways we can protect ourselves from involving the governments in our lives. Just ask Blagojevich and Clemens…..