“Remaining Silent” under the Fifth Amendment Should Not Infer Guilt

No “substantial penalties” can be imposed as a result of exercising their Fifth Amendment Rights

1921_sweet_lips.jpgMost people know they have a Fifth Amendment right not to be forced to incriminate oneself. This right encompasses not only the right not to speak about something that might lead you to actually admit to wrongdoing, but also the right to not have the court infer that your silence is itself an admission of guilt.

No substantial penalties can be imposed as a result of exercising your Fifth Amendment right. Moreover, if a defendant chooses to remain silent during sentencing, his silence is not to be taken as either an admission or a lack of contrition. However, if a defendant chooses to express remorse during sentencing, his statement can be used by the sentencing judge as a mitigating factor–a reason to be more lenient.

In an appellate case heard earlier this year, the rule against self-incrimination was applied to the issue of how a defendant’s silence can affect sentencing. In that case, the defendant (a woman) was on trial for major felony charges and was convicted.

Before sentencing, the trial judge said he would not put her on probation because the probation officer had reported she would not make statements about her offense during the investigation. Therefore, the probation officer had concluded she would not be able to participate in any counseling or treatment diversion program which required frank communication.

The defendant appealed, arguing that the trial court had improperly sentenced her to a two-year prison term instead of placing her on probation or suspending the sentence. In her view, the prison term violated her Fifth Amendment right against self-incrimination because it punished her refusing to talk about the details of her case with a probation officer.

The appellate court explained that in this case the defendant was neither entitled to probation nor to have her sentence suspended. Probation was a sentencing alternative, rather than a right. These were matters over which the trial court had discretion. Appellate courts give deference to the trial judge’s opinion about what seems necessary to rehabilitate a defendant.

The appellate court reasoned that a sentencing court was not prevented from considering a defendant’s silence regarding the offense in determining whether he or she could be rehabilitated through probation. In this case, the trial court had grounded its assessment in the probation officer’s report as to her unwillingness to talk about the offense even for purposes of rehabilitation.

The appellate court found that the sentence imposed was among those available by statute and therefore could not be considered a “substantial penalty” for silence or exercise of a Fifth Amendment right. The defendant in the instant case had relied on a Fifth Amendment case. In that case, a probationer was not required to answer certain polygraph questions because the court ruled he was entitled to assert the Fifth Amendment with respect to questions that could implicate him in future criminal matters.

The court reasoned that even a probationer would be required to answer questions relating to a past offense for which he was given probation. The defendant had refused to answer questions and had not intimated they might incriminate her in future criminal proceedings.

Additional Resources

Arizona Sentencing Chart
Maricopa County Criminal Procedures


Constitutional issues like the one described above often arise in criminal defense cases, including DUIs, drug possession, and violent crimes. If you are accused of a crime, in Phoenix AZ, contact the experienced criminal defense attorneys of the Law Offices of James Novak at 480-413-1499 to fight the charges.

More Blogs

Defenses for Disorderly Conduct Charges in Arizona, Arizona Criminal Defense Attorney Blog, March 11, 2013
Drowsy Driving v. DUI Charges: Facts, Prevention and Criminal Defense, Arizona Criminal Defense Attorney Blog, March 28, 2013

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