Pleading the Fifth and the Erosion of Due Process

K. Jill Bolton

The 5th Amendment with US Constitution in the background

The phrase “pleading the Fifth or “taking the Fifth” likely sparks different thoughts for different types of legal practitioners. Advising a client to assert his or her Fifth Amendment privilege against self-incrimination, which has been colloquialized as “pleading the Fifth,” provides an important blanket of protection when questioning under oath exposes them to potential criminal liability. Clients who are involved in a crime or who have been identified as a subject or target of a criminal investigation are wise to exercise this important right.

This article addresses the important Fifth Amendment right to remain silent, which is afforded to all citizens in all judicial proceedings. Additionally, the article discusses the dangerous trend of law enforcement encroaching on those rights, which leads to due process implications. Finally, the article touches on how a recent Idaho Supreme Court decision suggests that federal defendants in Idaho are likely to benefit from greater due process protections than their state counterparts. Ultimately, the author’s goal is to encourage renewed efforts by prosecutors, defense counsel, and judges to preserve these important rights deemed fundamental by both our State and Federal Constitutions.

The Fifth Shields the Innocent

Many people believe that if you’re innocent, there is no need to plead the Fifth. In the confines of a police station or the back of a patrol car in handcuffs, the Fifth Amendment is perhaps the most critical and most fundamental right available to protect against false confessions. Thus, as the Supreme Court in the landmark Miranda decision directed, it must be scrupulously honored.[i] At its core, the Fifth Amendment is meant to protect individuals from the inherent pressures of a police interrogation and government overreach.

Origins of the Fifth Amendment

Among the many fundamental rights enshrined in the Fifth Amendment, the clause protecting individuals from compelled testimony in criminal matters is what is best known to all Americans and commonly referenced in the legal profession as the privilege against self-incrimination. This important privilege was borne from a fervent rejection of the unjust and cruel inquisitorial system in 17th Century Stuart England and the draconian Star Chamber Oath.[ii]

This ancient criminal procedure forced individuals to take an oath before God to answer truthfully any questions that might be put to them. The person put to the oath is warned that refusal to answer would be deemed contempt of court for which the person could be imprisoned, lashed, or tortured.[iii]

The framers of our Constitution sought diligently to protect against the inquisitorial process by enshrining the privilege against self-incrimination in the Fifth Amendment. [iv]

The Civil/Criminal Juxtaposition of Pleading the Fifth

Asserting your Constitutionally guaranteed right to remain silent is not just for those subjected to police questioning. The privilege against self-incrimination has been recognized in American civil and criminal jurisprudence since the end of the 19th Century when the Supreme Court first pronounced that the privilege applied to witnesses in both criminal and civil judicial proceedings.[v]But asserting your right to silence has very different implications depending on whether you are involved in civil litigation or a criminal investigation.

In a criminal case, a jury is not permitted to draw an inference of guilt from the defendant’s failure to testify.[vi] In a civil case, however, a jury or administrative body may draw an adverse inference against a party who refuses to testify in response to questioning or evidence offered against him.[vii]

While the stakes can be significant in civil matters, they are enormous in the police interrogation room. In front of police, your statements could be the difference between liberty and incarceration, or even death. The fundamental protections of the Fifth Amendment thus deservedly get the most attention in the context of actual criminal investigations and proceedings.

In its Manual of Model Jury Instructions, the Ninth Circuit encapsulates the Fifth Amendment privilege within the presumption of innocence charge, instructing criminal juries that: “…the defendant has the right to remain silent and never has to prove innocence or present any evidence.”[viii]

The privilege applies in both federal and state proceedings.[ix] Many states, including Idaho, have also passed laws protecting individuals from being forced to incriminate themselves or conveying statutory immunity when testimony is compelled by the State.[x]

In establishing the now well-known “Miranda Rights,” the United States Supreme Court recognized the perils of the privilege against self-incrimination being abused in the police-dominated atmosphere attending a custodial interrogation.

An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion … cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.[xi]

Thus, in the confines of police interrogation rooms, the Supreme Court required that the well-known rights be read to the interrogee prior to any questioning. The individual must be advised of the right to remain silent and not answer any police questions. Also, the right to have counsel present during any questioning and, if indigent, to have counsel provided at public expense. Finally, the person must be advised that anything said says can be used against them in subsequent criminal proceedings.[xii]

These now well-known “Miranda rights” have been thoroughly examined in the over 50 years of jurisprudence comprising Miranda’s progeny, establishing some very clear rules for today’s police to follow. Our police officers’ important work in protecting our communities by enforcing our laws is founded upon their sworn oath to uphold and defend our Constitution. Yet, Miranda rights and the Fifth Amendment it was designed to protect too often fall victim to the relentless pursuit of the confession.

Assertion of Miranda Rights

Now enshrined in Miranda’s progeny, the United States Supreme Court has established several bright-line rules. Once an individual in custody invokes her right to remain silent, that invocation must be scrupulously honored, police questioning must cease, and authorities may reinitiate interrogation only after a “significant period of time” has passed.[xiii] A suspect’s invocation of the right to remain silent must be clear and unequivocal.[xiv]

Similarly, once an individual requests counsel, police must stop questioning until counsel has been made available.[xv] Further, interrogation of a suspect who has requested counsel is allowed only when the State shows by a preponderance of the evidence that the accused himself initiated further discussions and knowingly and intelligently waived the right to counsel he had earlier invoked.[xvi]

Once asserted, these rights must be scrupulously obeyed. Yet, through the relentless pursuit of the “confession,” undisciplined police officers, when unchecked by superiors, continue to violate the Fifth Amendment rights of our citizens.

Violations of the well-established Miranda rules, either by failure to read the rights altogether or supplying the custodial interrogee with inadequate advisories, persist today. Worse, however, is the police practice of reading the suspect his Miranda rights, but then ignoring the suspect’s election to exercise his rights. Though Miranda and its progeny Edwards v. Arizona could not have been clearer on the point that once a suspect asserts his right to counsel, all questioning must cease, police today will sometimes persist with questioning the suspect or feign ignorance of the assertion of rights. Similar tact is also sometimes followed when a suspect indicates their desire to not answer questions and to remain silent. Such practices represent a deliberate defiance of the Fifth Amendment and are happening in our communities today.[xvii]

Miranda, Fifth Amendment & Due Process Violations

In pursuit of the “confession,” police routinely engage in trickery and deceit during custodial interrogations. When such practice does not cross the line into providing incorrect legal advice, it is routinely upheld as permissible.[xviii] For example, police may tell a suspect they have found his fingerprints at the crime scene, or that a witness saw them commit the crime and that telling their side of the story will help them.[xix] While lawful, such troubling techniques have been shown to produce false confessions, which are among the leading causes of wrongful convictions.[xx] But when police persist with the interrogation after the right to silence or counsel is asserted, such conduct violates a suspect’s Fifth Amendment rights.

When police violate Miranda (i.e. fail to properly advise the suspect of his rights) or the Fifth Amendment (i.e. failure to scrupulously honor a suspect’s request for counsel, or stated desire to remain silent), the consequence to the State is that it may not use any “confession” so obtained. Should the trial proceed without the confession, the accused will nonetheless be constrained in his ability to testify because the confession could be used by the State to impeach the defendant if he elects to testify.[xxi]

However, a confession found involuntary or the product of “coercion” will be deemed a violation of the Due Process clause and cannot be used by the State for any purpose at trial.[xxii] What constitutes a “coerced’ confession, violative of Due Process, is a fact-intensive inquiry reviewed under a multi-factor totality of the circumstances analysis.[xxiii] This voluntariness inquiry considers “all the circumstances of the interrogation.”[xxiv]

Relevant circumstances may include: a suspect’s age, education, intelligence, physical health, and prior experience with the criminal system. Other factors include the length, location, and conditions of detention, the nature of questioning, and the use by law enforcement of any threats, punishments, or inducements.[xxv] Another important factor is whether the suspect asserted his Fifth Amendment rights during the interrogation and the assertion was ignored.[xxvi] The State bears the burden of proving by a preponderance of the evidence that the defendant’s Miranda waiver and confession were voluntary.[xxvii]

Based on a recent Idaho Supreme Court decision, however, federal criminal defendants in Idaho are far more likely to enjoy due process protections than their state counterparts when police obtain a “confession” after repeated violations of their Fifth Amendment rights.[xxviii]

A Case in Point

Today, well over 50 years since the dictates of Miranda and many years since its progeny, it should shock the conscience that police would nonetheless persist with an interrogation after an individual asks for an attorney or makes clear that he wishes to remain silent. Yet it happens regularly and likely more often than it is penned to a motion to suppress. Perhaps it happens more than the defense bar sees because the diligent prosecutor quashes the effort to use the Constitutionally prohibited “confession” by refusing to charge absent further corroborating evidence. But that it happened to the extent seen in the recent case reviewed by the Idaho Supreme Court should cause all of us concern.

In August 2022, the Idaho Supreme Court reviewed the case of State v. Moore, 516 P.3d 1054 (2022), a case where a murder suspect, subjected to a custodial interrogation, repeatedly requested, and was denied the assistance of counsel. The suspect was confined to a police interrogation room without access to a phone and subjected to psychological techniques designed to wear down his will and force a statement.

Indeed, he was told that if he did not tell police why he committed the crime in which he had repeatedly denied involvement, it would be inferred that he premeditated the murder, and he would be charged with first-degree murder. In his mind, the choice was talk to police or face the death penalty.[xxix] Though the Idaho Supreme Court had previously ruled that such threats would be deemed an involuntary statement violative of Due Process, it seemed to retract this position in Moore, finding only a Fifth Amendment violation.[xxx]

In contrast, the Ninth Circuit has established that threatening an individual during a custodial interrogation with greater punishment if he doesn’t confess violates Due Process.[xxxi] Further, the Ninth Circuit has recognized that repeated denial of counsel in response to the custodial interrogee’s repeated requests was a “tactic designed to generate a feeling of helplessness” which made the suspect a “prisoner in a totalitarian nightmare, where the police no longer obeyed the Constitution, but instead followed their own judgment, treating suspects according to their whims.”[xxxii]

Moore seemed to fit the exact profile of the dystopian nightmare envisioned by the Ninth Circuit. Idaho police repeatedly ignored the defendant’s request for counsel and threatened first-degree murder charges if he didn’t tell them he did what they suggested. The police most certainly generated a feeling of helplessness when the so-called rights police told him he had were ignored. The Idaho Supreme Court found a violation of Moore’s Fifth Amendment rights and that the “confession” was properly suppressed but stopped short of finding a due process violation.


In establishing the now well-known Miranda rights, our United States Supreme Court enshrined our Fifth Amendment privileges and reminded us of the danger of turning our backs on holding police to the standards necessary to preserve them.

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.[xxxiii]

K. Jill Bolton is the managing owner of Bolton Law, PLLC in Coeur d’Alene where she focuses on state and federal criminal defense, family law, and civil rights/employment litigation. She serves on the Board of Directors for the Federal Defender Services of Idaho, as Chair of the Idaho State Bar Employment & Labor Law Section, and as faculty of the National Association for Public Defense. In her free time Jill enjoys skiing and hiking the great mountains of North Idaho and long-distance road biking.

[i] Miranda v. Arizona, 384 U.S. 436 (1966).

[ii] Miranda, 384 U.S. at 458–60.

[iii] Nathan Dorn, John Lilburne, Oaths and the Cruel Trilemma, (2013).

[iv] Miranda, 384 U.S. at 459-60 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)); Counselman v. Hitchcock, 142 U.S. 547, 562 (1892).

[v] Boyd, 116 U.S. 616.

[vi] Griffin v. California, 380 U.S. 609, 615 (1965).

[vii] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

[viii] Manual of Model Criminal Jury Instructions, United States Courts for the Ninth Circuit, (Jan. 31, 2023).

[ix] See Malloy v. Hogan, 378 U.S. 1, 7 (1964).

[x] E.g., CPLR 4501; Mass. Const. Pt. 1, Art. 12; Idaho Code §§ 19-1121, 1122.

[xi]Miranda, 384 U.S. at 461.

[xii] Id. at 479.

[xiii] Michigan v. Mosley, 423 U.S. 96, 104–06 (1975);  State v. Blevins,108 Idaho 239, 242, 697 P.2d 1253, 1256 (Ct. App. 1985).

[xiv] State v. Law, 136 Idaho 721, 725, 39 P.3d 661, 665 (Ct. App. 2002); State v. Whipple, 134 Idaho 498, 502, 5 P.3d 478, 482-64 (Ct. App. 2000).

[xv] State v. Person, 140 Idaho 934, 938, 104 P.3d 976, 980(Ct. App. 2004) (citing Edwards v. Arizona, 451 U.S. 477, 484–85 (1981)); State v. Cheatham, 134 Idaho 565, 574, 6 P.3d 815, 824 (2000).

[xvi] Id. (citing Cheatham,134 Idaho at 574–75, 6 P.3d at 825); Smith v. Illinois, 469 U.S. 91, 95 (1984).

[xvii] See e.g., State v. Moore, 516 P.3d 1054 (2022) (continued questioning of a suspect after repeated requests for counsel violated the Fifth Amendment and required suppression).

[xviii] See State v. Smith, 162 Idaho 878, 883, 406 P.3d 890, 895 (Ct. App. 2017) (“deceptive police practices do not necessarily create coercion which would render a suspect’s subsequent confession involuntary and excludable” (citing State v. Davila, 127 Idaho 888, 892, 908 P.2d 581, 585 (Ct. App. 1995)).

[xix] Davila, 127 Idaho at 892, 908 P.2d at 585.

[xx] See Innocence Project, DNA Exonerations in the United States,

[xxi] Michigan v. Harvey, 94 U.S. 344, 345–46 (1990); Moore, 516 P.3d 1054.

[xxii] Id.

[xxiii] Miller v. Fenton, 474 U.S. 104, 109 (1985) (certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned). See also Moran v. Burbine, 475 U.S. 412, 432–434 (1986).

[xxiv] Mincey v. Arizona, 437 U.S. 385, 401 (1978).

[xxv] See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

[xxvi] Cooper v. Dupnick, 963 F.2d 1220, 1243 (9th Cir. 1992 (overruled on other grounds by Chavez v. Martinez, 538 U.S. 760 (2003)).

[xxvii] Colorado v. Connelly, 479 U.S. 157, 168 (1986).

[xxviii] Id.

[xxix]Moore, 516 P.3d 1054.

[xxx]State v. Samuel, 165 Idaho 746, 766, 452 P.3d 768, 770 (2019).

[xxxi] See Tobias v. Arteaga, 996 F.3d 571, 581 (9th Cir. 2021) (“Any suggestion by a law enforcement officer ‘that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor’ is unconstitutionally coercive” ) (quoting United States v. Harrison, 34 F.3d 886, 891-92 (9th Cir. 1994)).

[xxxii]Cooper, 963 F.2d at 1243.

[xxxiii] Miranda,384 U.S. at 480 (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion)).