1. Fifth Amendment
Alexander’s argument that Garza and the officers retaliated against him for exercising his Fifth Amendment right not to answer Officer Garza’s questions is easily disposed of. As this court has noted on multiple occasions, “[a]n individual’s Fifth Amendment right against self-incrimination is implicated only during a custodial interrogation.” Murray v. Earle, 405 F.3d 278, 286 (5th Cir. 2005) (internal quotation marks omitted); see also United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015) (same). Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.” Murray, 405 F.3d at 285; see also Winn v. New Orleans City, 919 F. Supp. 2d 743, 752 (E.D. La. 2013) (same). In other words, the Fifth Amendment protects a defendant from being coerced into making an incriminating statement, and then having that statement used against him at trial. But Alexander was never tried. His Fifth Amendment right against self-incrimination was not violated. 4
*4 The parties spill much ink on the issue of whether Miranda rights attach during non-custodial interrogations. That argument is a red herring in this case, because any incriminating statements Alexander might have theoretically uttered had he answered Garza’s questions could not have been used against him in court anyway—there was no trial.
Only a lawyer could consider the above to be anything resembling a reasonable statement. I'd call it insanity, but those of us who actually read the dreck that originates in our legal system these days would not find it unusual at all. It seems that the author of the opinion thinks that as long as there was no trial (because ultimately the state had no case against him, the police can demand that he answer any question they might have. It's obvious from the rest of the decision's discussion of this that they feel the government has the right to compel someone to speak. It was an illuminating look at government-think.
Yeah, I agree.
If the cops pull you over, you are in police custody. You are not free to leave.
And you should have a 5th Amendment right.
Looks like he has to answer questions before they take him into custody, but he doesn't have to answer those same questions after they take him into custody for not answering the questions.
That makes perfect sense.
By the way, I haven't researched it now, but at one time I thought that if the police stopped you for a traffic offense you were in their custody.
Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.”
What if I'm at a trial as a witness but not on trial as the defendant? Can I "take the Fifth" because I am at a trial or not because I am not on trial?
“[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.”
= = =
Then why the Miranda?
You have the right to remain silent and refuse to answer questions.
Anything you say may be used against you in a court of law.
But you are not in court, or at trial yet, right????
But I am only a Common Sense proletariat, not versed in legal-speak.