Letter: Invoking the Fifth Amendment is not an admission of guilt

Smith writes, "If the prosecution has a solid case against the defendant, they must be able to make that case without relying on the testimony of the suspect."

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Forum columnist Jack Zaleski recently wrote an article berating Republicans for their reaction to the FBI raid against Trump . This letter is not about Trump; rather it’s about a disgusting comment Zaleski made, completely devoid of any historical awareness.

For context, Trump invoked the Fifth Amendment to the US constitution during New York’s tax case against him. This means he is refusing to testify in court or speak with law enforcement.

In response, Zaleski said,
“Resorting to the 5th is just short of admitting guilt. The text says no person ‘shall be compelled in any criminal case to be a witness against himself...’ No criminal case. The implication is obvious: The 45th president knows he’s guilty of a crime.”
Anyone with a shred of civics education should call that out for what it is: a crock of bulls***.

The criminal justice system in the U.S. is not perfect. Criminals are rarely caught red-handed. It is the job of law enforcement to gather evidence, find a suspect, then it is the job of a prosecutor to prove that suspect is guilty.

There was a time when suspects were required to testify for their own defense. If they did not testify, they had no defense. But because prosecutors make careers out of convicting thousands of suspects, this exchange is always weighted against the defendant. The defendant, even if they are purely innocent, may misspeak. They may make an assumption that turns out to be false and the prosecution will accuse them of lying. They may be a victim of misidentification and their testimony would only entrench this mishap.


If the prosecution has a solid case against the defendant, they must be able to make that case without relying on the testimony of the suspect.

According to the U.S. Supreme Court, the purpose of the Fifth Amendment is to protect innocent people who otherwise might be ensnared by ambiguous circumstances. (Grunewald v US, 1957)

In 1966, the court expanded Fifth Amendment protections to apply in police interrogation rooms. Too often police will lock people in windowless rooms for hours on end until they say something incriminating. But according to the case Miranda v. Arizona, all people have a constitutional right to not be interrogated by the police.

According to the Innocence Project, of all the convictions that are proven to be false with DNA evidence, 29% made a false confession. Police can and frequently do use psychological techniques to induce people to make incriminating statements, even if they’re false. A suspect sitting alone in that room doesn’t stand a chance against the resources of the state, but with one exception: they have the Fifth Amendment to protect them.

In Ullmann v US (1954), the Supreme Court said, "Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege."

That is exactly what Zaleski did in his letter. I am not defending Trump. Trump made similar statements when Hillary Clinton invoked her Fifth Amendment rights. Trump was just as wrong as Zaleski. But Zaleski should know better. He’s not a politician trying to woo a crowd.

Invoking one’s Fifth Amendment right to stay silent is not an admission of guilt. It is not evidence of any crime. It cannot be used in court to suggest you did anything wrong.

Every defense lawyer will tell you to take full advantage of your constitutional rights, especially if you are innocent.


William Smith lives in Fargo.

This is letter does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

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