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Does the 5th Amendment Let You Lie to Federal Agents?

Lying to federal agents is against the law, and the 5th Amendment will not protect you if you choose to do it.

Under the 5th Amendment, you have the right to avoid incriminating yourself. At least, that’s the simplified version of the 5th Amendment you read about in novels and see on television.

The reality of the 5th Amendment is quite a bit more complicated.

Understanding Brogan v. United States

The 1997 Supreme Court case Brogan v. United States the petitioner, Brogan, answered “no” when federal agents asked if he’d accepted any bribes. When the agents discovered he had, he was charged both for bribery and for making false statements to federal law enforcement.

The Supreme Court rejected his 5th Amendment claim even though there was existing precedent covering “exculpatory nos.” The exculpatory no doctrine says you cannot be convicted of lying to a federal agent if all you do is deny wrongdoing. The doctrine does not exist in the plain language of 18 U.S. C. §1001, the statute which makes it a crime to lie to federal law enforcement.

In writing his opinion, Justice Scalia wrote: “His argument that a literal reading of §1001 violates the “spirit” of the 5th Amendment is rejected because the Fifth Amendment does not confer privilege to lie.” 

What to Do Instead of Lying

The 5th Amendment doesn’t auto-invoke unless you are in custody, and if you waive your rights by saying something incriminating then it won’t save you. In addition, many times you won’t be in custody, or in a situation where you can be compelled.

For example, federal agents may be searching your home or attempting to question you at your place of residence. In this situation you can’t lie, silence might be used against you because you are not in custody yet, and you can’t tell the truth. What should you do?

In this situation, the smart call is to say one of three things.

You can say, “I’m sorry, but I prefer not to answer that question.” This essentially invokes your 5th Amendment rights without delivering either silence or a lie. 

You can also say, “I invoke my 5th Amendment rights.” While this certainly may signal guilt to law enforcement your invocation of your rights certainly cannot be used against you.

The smartest thing you can say would be: “I will not answer any questions without an attorney present.” This keeps you from “letting something slip” in non-specific questions you don’t see as dangerous but which actually are. It also keeps you from broadcasting which questions could provide evidentiary paydirt for law enforcement.

Finally, it ensures you get the protection of an attorney from the moment you start encountering investigators, a person who can navigate you through the entire process and prevent you from making any dangerous mistakes.

Knowing your rights isn’t just about knowing what the Constitution says. It’s also about knowing how that document has been interpreted, and what you must do to activate or maintain the privileges it confers. 

See also:

Should You Take a Polygraph if You’re Accused of a Federal Crime?

5 Mistakes to Avoid When You’re Under Investigation

Should You Go to Trial for Federal Criminal Charges?