I’ll Take the Nickel

by Chris Markham. 0 Comments

“I’m not talking to you. I know my rights.” I can’t tell you how many times I hear that (Hundreds if you count my son.) However, the application of the Fifth Amendment of the United States Constitution is a bit more selective than a one-size fits all solution; much more selective than the writers of television shows and movies would have you believe.
There is one interesting nexus of “Taking the Fifth”, which I’ll get to later on. But, for our purposes, you’re right to remain silent works basically only when the cops are involved. You’re in the “box” being “interviewed” by the boys in blue about a crime, you’re on the witness stand at your trial or a trial of one of your close confederates – that’s when the fifth comes in handy and is procedurally and constitutionally correct. If Congress wants to talk to you about something, you can plead the fifth, but there are bunches of rules surrounding that. So while you might be legally and constitutionally correct, you may run afoul of House or Senate rules, and penalties may flow therefrom.
Essentially, the Fifth Amendment allows you as an individual and as a citizen of the United States of America to refuse to answer any questions asked of you by the government or a government agent that you don’t want to answer, or, if you answer, could be self-incriminating. Basically, if a cop asked you if you committed a crime and your answer either incriminates yourself or someone you know, you are not legally required to answer. This isn’t a get out of jail free card; rather, it’s a curb on government control.
However, if you work for a private company, or you’re asked a question by your spouse or parents, pleading the fifth is not only legally incorrect, you can face multiple penalties flowing therefrom. There have been many times where I’ve been in a deposition, settlement conference or in an actual trial when people have attempted to take the fifth. Then I, or an opposing counsel or a judge has to explain that the Fifth Amendment protection applies only to government action. If the government wants information, you can legally prevent them from getting it (if only for a time). Anyone else wants information, you can stop the process, but there will be a price to pay.
I remember working in a restaurant when I was in high school and college. For a number of months during one summer, there was a HUGE issue with drugs. I know – drugs in a restaurant. Shocking. In any event, the problem got so serious that employees were sat down with management to tell them what the employee knew. Many of the workers went ballistic, refusing to answer questions stating that “they knew their rights.” (Sound familiar?) Well, as we’ve discussed, this was a private employer asking questions with no government intervention or cooperation. They knew their rights; and in the end, they had the right to be fired (which they were).
As previously noted, there is an interesting nexus between employer, employee and government intervention. What if the government is the employer? We all know there are many laws and regulations that govern private business. However, government employers have to obey all of those laws, as well as what’s set forth in the Constitution. Another place I worked (yeah, I know – I can pick ‘em) was a government agency run by someone that came from the private sector. There was a personnel issue that ensnared every employee (it was a very small agency). In his infinite wisdom, he attempted to resolve the issue using private sector techniques. This included one-on-one meetings with employees and meetings with the entire staff. He grew increasingly frustrated when employees (quite rightly) pleaded the fifth. Then, when he attempted to call staff meetings, the anger grew, as some employees requested (and brought) their lawyers to the meetings in the event the issues were discussed. The boss just ended up walking away, rather than continuing with his investigation. That’s where the Fifth Amendment actually worked.
In the end, just remember this – if anyone with a uniform or if it involves a criminal matter (or government involvement at any time) asks you something (and you don’t want to respond), you can plead the fifth. For anyone else, you can respond at your own risk and take whatever consequences that may come.


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