Under the Fifth Amendment to the United States Constitution, a person cannot be compelled by the government to provide incriminating information about himself or herself. This fundamental protection applies to all criminal proceedings in Wyoming and South Dakota, and understanding how to invoke it properly can be crucial to protecting your rights.
The Fifth Amendment and State Constitutional Protections
Specifically, the Fifth Amendment states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Wyoming's Constitutional Protection
Wyoming Constitution, Article 1, Section 11 provides its own protection against self-incrimination:
"No person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense."
Wyoming's constitutional provision mirrors the federal Fifth Amendment protection, ensuring that residents have both state and federal protections against self-incrimination. Wyoming courts interpret this provision consistently with federal constitutional law, providing Wyoming residents with robust protection of their rights.
South Dakota's Constitutional Protection
South Dakota also provides constitutional protection against self-incrimination under Article VI, Section 9 of the South Dakota Constitution. Like Wyoming, South Dakota courts have consistently held that these protections are coextensive with federal Fifth Amendment rights, meaning South Dakota residents enjoy the same strong protections against compelled self-incrimination.
The U.S. Supreme Court's landmark decision in Miranda v. Arizona (1966) applies to all criminal proceedings in both Wyoming and South Dakota, requiring law enforcement to inform suspects of their rights before custodial interrogation.
What People Mean When They Say "Plead the Fifth"
In common usage, people often say they "plead the fifth" when they refuse to answer a question.
But in a technical legal sense, pleading the Fifth is much more complex. There are limitations on when a person can assert their Fifth Amendment right against self-incrimination, instances in which a person cannot claim their Fifth Amendment rights (such as if they have been granted immunity from prosecution), and criteria that must be met before a person can refuse to answer a question under the Fifth Amendment.
Limits of the Fifth Amendment Right Against Self-Incrimination in Wyoming and South Dakota
The language of the Fifth Amendment is very specific and can only be invoked in certain situations. These same limitations apply in Wyoming and South Dakota criminal proceedings.
A person can only assert their Fifth Amendment rights in response to a request from the government through a subpoena or other legal process.
To claim a Fifth Amendment right against self-incrimination, the communication requested must be testimonial in nature. The person receiving a request must be asked to provide testimony or to produce documents or other evidence in response to a subpoena.
Finally, to invoke the Fifth Amendment, the testimony must be self-incriminating. By providing the information requested, the person asked to testify or produce information would provide information that could lead to their being charged with a crime. The information itself does not need to be incriminating, but it must lead to the discovery of evidence that could be incriminating.
What Does It Mean to Invoke Your Fifth Amendment Rights in Wyoming or South Dakota?
When a person invokes their Fifth Amendment rights in a Wyoming or South Dakota criminal proceeding, it means they are refusing to answer a question, and that their silence cannot be used against them in a criminal case. If a person invokes their Fifth Amendment rights, the prosecutor cannot argue that the defendant's silence implies that he or she was guilty. And in most cases, a prosecutor cannot call a witness to testify before a grand jury if they know the witness will invoke their Fifth Amendment rights.
However, invoking your Fifth Amendment rights can have severe consequences. For example, in a civil case, a judge or jury can infer that someone's silence implies they were liable. Likewise, someone who invokes their Fifth Amendment rights during questioning about a corporate crime could be fired from their job.
Important Note for Wyoming and South Dakota Residents
Whether you're being questioned in Gillette, Casper, Cheyenne, Rapid City, or Sioux Falls, the same constitutional protections apply. Wyoming and South Dakota law enforcement officers must respect your Fifth Amendment rights during any criminal investigation or proceeding.
Is It a Good Idea to Invoke Your Fifth Amendment Rights?
While the right against self-incrimination is fundamental and a cornerstone of our legal system, taking the Fifth Amendment is not always the best option.
If you are tempted to claim your Fifth Amendment rights, you should only do so after discussing the situation with your lawyer. Any conversations you have with your lawyer about whether or not to claim your Fifth Amendment rights are protected by the attorney-client privilege. Your lawyer cannot be compelled to testify against you, and anything you say to your lawyer will remain confidential.
When to Consider Invoking the Fifth in Wyoming and South Dakota
If your lawyer determines that there is a real risk that your testimony could reveal your involvement in illegal activity, it may be best to take the Fifth. But in some cases, your lawyer may be able to negotiate immunity in exchange for information that you provide. If you are granted immunity, the prosecutor agrees not to prosecute you for the crime that was the basis of your decision to plead the Fifth. Once the threat of prosecution is gone, you may be compelled to testify, but without the threat of criminal prosecution.
This is particularly relevant in Wyoming and South Dakota cases involving:
- Drug-related offenses
- DUI/DWI investigations
- Theft or property crimes
- White-collar crimes
- Domestic violence cases
- Any situation where police are conducting a broader investigation
How Wyoming and South Dakota Courts Apply Fifth Amendment Protections
Both Wyoming and South Dakota courts have consistently upheld Fifth Amendment protections in criminal proceedings. Here's what you need to know:
During Police Interrogations
Whether you're being questioned by the Gillette Police Department, Campbell County Sheriff's Office, Rapid City Police, or Pennington County Sheriff's Office, law enforcement must:
- Advise you of your Miranda rights before custodial interrogation
- Cease questioning if you invoke your right to remain silent
- Honor your request for an attorney
During Court Proceedings
In Wyoming and South Dakota courts:
- Defendants cannot be compelled to testify against themselves
- Witnesses can invoke the Fifth Amendment when answering would be self-incriminating
- Prosecutors cannot comment on a defendant's decision not to testify
- Judges must instruct juries that they cannot draw negative inferences from a defendant's silence
Grand Jury Proceedings
Wyoming: Wyoming uses grand juries in certain cases, particularly for felonies. Under Wyoming Constitution Article 1, Section 13, witnesses called before a Wyoming grand jury have the right to invoke their Fifth Amendment protections.
South Dakota: South Dakota also utilizes grand jury proceedings. Witnesses appearing before South Dakota grand juries have full Fifth Amendment protections and cannot be compelled to provide self-incriminating testimony.
Understanding Your Rights in Wyoming and South Dakota: Practical Examples
Traffic Stops and DUI Investigations
If you're stopped for suspected DUI in Wyoming or South Dakota:
- You must provide your driver's license, registration, and proof of insurance
- You can decline to answer questions about where you've been or whether you've been drinking
- You can refuse field sobriety tests (though this may result in license suspension)
- You can refuse a breath test (with consequences under implied consent laws)
Drug Investigations
If law enforcement suspects drug activity:
- You do not have to answer questions about drugs in your possession or home
- You do not have to consent to searches
- You can invoke your Fifth Amendment rights at any point during questioning
Witness Testimony
If you're called as a witness in a Wyoming or South Dakota criminal case:
- You can invoke the Fifth Amendment to refuse answering specific questions
- You must articulate how your answer could incriminate you
- Unlike defendants, witnesses can selectively invoke the Fifth for particular questions
Critical Reminders for Wyoming and South Dakota Residents
- You must explicitly invoke your Fifth Amendment rights. Simply remaining silent is not enough. The U.S. Supreme Court has held that you must clearly state that you are invoking your right to remain silent.
- Different rules apply in different contexts. The Fifth Amendment applies differently in criminal cases, civil cases, administrative proceedings, and congressional hearings.
- Local law enforcement must follow the same rules. Whether you're dealing with:
- Wyoming: Gillette PD, Casper PD, Cheyenne PD, Sheridan County Sheriff, Natrona County Sheriff
- South Dakota: Rapid City PD, Sioux Falls PD, Aberdeen PD, Minnehaha County Sheriff, Pennington County Sheriff
- Immunity agreements vary. Prosecutors in both states can offer different types of immunity. Your attorney can help negotiate the best terms.
Just Criminal Law: Protecting Your Rights in Wyoming and South Dakota
If you find yourself in a situation where you are considering pleading the Fifth, it is critical that you speak to an attorney first.
Criminal defense attorney Christina L. Williams and her legal defense team at Just Criminal Law understand Wyoming and South Dakota criminal law and can explain your rights under the Fifth Amendment, answer your questions, and provide aggressive legal representation if you have been charged with a crime or find yourself in a situation where you could be charged with a crime.
Learn more about the cases we handle, the communities we serve, and why clients choose us. Then contact Just Criminal Law today to schedule your personalized case review and strategy session.
Call us 24/7 at (307) 300-2240