"I will invoke my Fifth Amendment privilege today."

Other than a few video clips taken immediately after he killed George Floyd, those are the only words the public has heard Derek Chauvin speak since he killed George Floyd on May 25 of last year.

As the defense rested after nearly two weeks of expert and witness testimony, Chauvin invoked his constitutional right to remain silent. This was immediately met with terrible takes — including from people who should know better — about how Chauvin not taking the stand proves his guilt.

And ... NO NO NO NO NO NO NO NO NO.

Invoking your constitutional rights is NOT an admission of guilt.

Let's get this straight:

Derek Chauvin should be convicted of murder because he tortured George Floyd to death. He should NOT be convicted of murder because he invoked his Fifth Amendment right to remain silent.


Constitutional rights are a good thing! And invoking your rights in a criminal proceeding should never be presumed to be wrong.

Most people know the words "plead the Fifth" in terms of clearly guilty villains on criminal procedure TV shows invoking it to save their own asses. (Don't get me started on how shows like "Law & Order" prejudice people against criminal defendants and also the very existence of civil and constitutional rights.) What most people don't know is where the Fifth comes from.

The Fifth Amendment's protection against self-incrimination didn't magically pop in out of nowhere. It was included in the Bill of Rights to stop the government from torturing people until they confessed. In 15th, 16th, and 17th century England, forced confessions, torture, and coercion were the norm. Anyone who refused to take an oath swearing to their innocence was presumed guilty.

When you look at the right against self-incrimination in the context of history, it seems like a no-brainer. But the sad fact is that Americans are nearly universal in their belief that invoking the Fifth Amendment indicates guilt, at least when they don't like the person who is being prosecuted. Jurors in criminal trials are instructed not to take pleading the Fifth as a sign of guilt — but they still do.

That shouldn't be a thing! The Fifth Amendment is something Americans should care about and fiercely protect. No criminal defendant should be expected to take the stand to defend himself. It is integral to the American system of justice that the burden is on the government to prove its case beyond a reasonable doubt — it is not the duty of the defendant to prove himself innocent.

Like the Supreme Court held in Ohio v. Reiner, "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."

There are so many reasons for a criminal defendant not to take the stand. Criminal defense lawyers will tell you that a defendant testifying at his trial is "almost always a bad idea." Taking the stand is more likely to hurt than help. You open the door to the prosecution to cross-examine you and introduce evidence that would otherwise be inadmissible. You might be afraid to testify — and jurors are known to read guilt into body language that could just show discomfort with testifying. You have to be someone the jury can empathize with while also not being "too emotional." It's a really hard line to walk.

I have watched the video of Derek Chauvin brutally killing George Floyd, putting his weight on Floyd's neck for nearly 10 minutes, until the life left Floyd's body. He should be convicted of murder. But he should be convicted because of what he did, not because he chose not to testify.

Oh, and while I'm up here on my soapbox, can we also stop talking about the terrible things we want to happen to Chauvin in prison? That shit is really disgusting. It is far from okay that American prisons are torture factories. Rape and violence should not be part of anyone's incarceration. I don't care what they did.

Chauvin's trial is in recess until Monday, when both sides will present their closing arguments (which are a summary of their case and can't include new evidence). Deliberations are set to begin Tuesday.

Hopefully, justice will be served.

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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