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Does the invocation of the 5th amendment ever constitute evidence of having committed a crime?

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  • Not exactly, but I've got an interesting case. Let me see if I can find it
    – Pat W. ♦
    Nov 24, 2015 at 22:37
  • Invoking the 5th Amendment can't be used against you in a criminal case against you, but it can be used in a non-criminal case against you (e.g. a case for civil damages from assault or theft) even if the non-criminal case involves the same factual basis as the criminal case. And if you testify without invoking the 5th in a civil case, then your testimony can be used against you in a criminal case against you.
    – ohwilleke
    Nov 3, 2016 at 21:57

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I haven't found a recent case like this where it constitutes evidence.

Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ.

That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking.

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    Jurors typically listen to the judges instructions. In a criminal case, where the defendant does not testify the judge will typically instruct the jury not to draw an adverse inference. If the prosecutor tries to have the jury draw an adverse inference from that, they may be subject to sanctions and a mistrial will most likely be declared. In civil cases, however, juries can draw an adverse inference from the defendant remaining silent.
    – Viktor
    Nov 25, 2015 at 1:48
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    @Viktor; good point. I meant that it can be difficult psychologically to not be influenced, even when it violates an instruction.
    – Pat W. ♦
    Nov 25, 2015 at 2:27
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    Jurors hear the judge's instructions. Whether they actually listen to them, or whether anybody can truly ignore information they already hold because a judge told them to, is a more complicated question (my favorite example).
    – Zach Lipton
    Apr 4, 2016 at 6:32
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From the point of view of another jurisdiction; Australia does not have a statutory or constitutional right against self-incrimination, however, such a right is recognised in the common law.

Juries are specifically permitted to draw inferences from silence where the defendant is in the position to know material facts that are not otherwise in evidence. For example, there was a Queensland case (name escapes me for the moment) where the facts were that a husband and wife had hired the defendant as a deck-hand on their yacht and sailed into the South Pacific. No further news was heard of the couple but the defendant and the yacht turned up without them whereupon the defendant was charged with their murder, tried and convicted. The trial judge instructed the jury that they could draw inference from the defendant's silence when he was clearly in a position to know what happened and chose not to offer any explanation. The court of appeal held that the direction was OK.

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    This is a akin to the spoliation of evidence rule.
    – Alexanne Senger
    Nov 25, 2015 at 20:00
  • I am curious, did the prosecution offer any other evidence of the defendant committing the crime?
    – Viktor
    Nov 25, 2015 at 21:38

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