Can I Be Sued for Questioning a Suspect After They Invoke Their Fifth Amendment Rights?

Can I be sued and personally held liable for questioning a suspect after he invokes his Fifth Amendment rights against self-incrimination? Yes, you can have civil damages awarded against you from violating Miranda. How’s this so? I thought it was only a suppression of evidence. Let me explain.

I’m Muna Busailah, partner in the police defense law firm of Stone Busailah, and we have exclusively represented public safety employees in civil, criminal, and administrative matters for over 25 years. In this case, let me explain that the Fifth Amendment to the U.S. constitution provides that no person shall be compelled in any criminal case to be a witness against himself.

The Miranda rights

In the case of Miranda versus Arizona, the Supreme Court implemented the guarantee by setting forth concrete guidelines for officers to follow when conducting custodial interrogations. This means the Miranda warnings.

The warnings were adopted to reduce the risk of a coerced confession and to implement the self–incrimination clause. So before an individual in custody is questioned, he must be advised at a minimum that he has the right to remain silent, that any statement he makes may be used against him, and that he has the right to the presence of an attorney, either retained or appointed.

When may the officer proceed with questioning?

The officer may then proceed with questioning only if the subject of the interrogation agrees to waive these rights. An officer’s failure to provide the Miranda warnings or to obtain a valid waiver of the suspect’s Miranda rights was generally enough to require exclusion of the statements obtained.

Now defendants can sue the officer

And that’s where it all stopped until this new case that says that defendants are now permitted to sue the officer civilly for violating Miranda, as well as for having their statements suppressed. So an unmirandized statement was introduced in a criminal proceeding against the defendant who sued the officer, and the court let the case proceed.

The takeaway

The takeaway here is that ignoring Miranda or proceeding intentionally in violation of Miranda will place you at personal risk of a lawsuit. Proceeding in violation of Miranda even if you are well intentioned and you’re only looking to obtain impeachment material or close an outstanding report is not a wise choice. It can result in civil damages against you as well as an internal investigation for violating the law. For more tips and things to remember during an investigation, please see our free guide. Stay safe.  

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