Conjuring the Fifth

Most people consider me a social liberal. (“You’re saying that just to piss me off. No one’s really as liberal as you pretend to me,” can safely be described as coming down on that side.) I don’t believe in torture, and I think our Constitutional protections, and this country’s willingness to get out in front of the rest of the world in this regard, is a form of “American exceptionalism” we can be proud of. Still, common sense is in order, and the Supreme Court got one right today when it ruled, in a 5-4 decision, that a suspect must actually invoke his Fifth Amendment protection against self-incrimination if he wishes to take advantage of it.

Here’s the gist of it: Van Chester Thompson was arrested for murder in 2001. Advised of his rights, he said he understood them. He then sat through about three hours of interrogation, occasionally answering “yes,” “no,” or “I don’t know.” When a cop asked if Thompson prayed for forgiveness for “shooting that boy down,” Thompson said, “yes.”

Oops.

That got him convicted, and I can see why. Thompson appealed, arguing the statement should be thrown out because he tacitly invoked Miranda by being uncommunicative. Please. All he had to do was to say, “I want a lawyer,” “I don’t want to answer any questions,” or “I’m taking the Fifth.” Anything along those lines would have compelled the cops to stop the interrogation, or this would be an entirely different case.

Invoking the Fifth Amendment is not a clever tool for cherry-picking answers. Grand jury witnesses who appear under grants of immunity must invoke their protection against self-incrimination with the first question. You’re not allowed to answer the questions you like, then dodge the ones that could get you into trouble. We can argue about whether that’s fair—I have my doubts—but it’s been established law for years.

As Chris Rock says in his priceless video essay, “How Not to Get Your Ass Kicked by the Police,” the best thing for someone in Thompson’s situation to do is to “Shut the fuck up.” But not till after you ask for a lawyer. It’s your right, you know.