Alternatives to pleading the 5th that also offers protection

Question

I watched a old video (Don't talk to Police) that popped up while looking up information related to cyber forensics and false positives. I gathered the following points:

• You can't talk your way out of getting arrested. (7:55)
• Everything you tell the police can be used against you but not to help you. (8:46)
• More than 25% of DNA exoneration cases had defendants that made incriminating statements, delivered outright confessions or pled guilty. (11:11)
• People will move to convict based on anything, including mis-speaking, despite knowledge about how human nature and situations can trick people into an incriminating response despite being innocent. (13:20)
• Knowledge that you didn't like someone is used to convict. The focus is motive and opportunity. (14:50)
• The 5th amendment was not designed as a shelter for the guilty (despite it often being used as such). It was designed to help prevent you from unknowingly incriminating yourself. (17:00)
• Even if you are innocent, what you say to the police can be used to crucify you in court if the police don't recall your testimony with 100% accuracy. (17:38)
• People often forget that "them vs the legal system" is like an "avg person vs a professional boxer". It seems that both defendants and juries are in the amateur vs champion game. (33:00)
• Police officers still think that if they put a story together, validity that it's close to what happened is confirmed by the other person slumping down in their chair or putting their hand to their face. (33:53)

That last point suggest we still live in a world where people think "if they're not looking you in the eye...that means they're lying". Confident, researched, guilty actors get away with murder, and unconfident nervous innocent people get slaughtered. I've seen this once inside the courtroom and many times outside the courtroom. I couldn't watch anymore beyond this point because it was frustrating to see the police officer talking like he had mastered the science of body language and psychology. It's unchecked confirmation bias.

With the above in mind:

1. Given people believe "if you're pleading the 5th, you must be guilty" or "if you're innocent you won't have to plead the 5th", is pleading the 5th the only thing people can do to avoid talking to the police and mistakenly incriminating themselves?
2. Are there situations where not talking to the police is illegal or where you can be legally punished for not talking to the police? For example, if you witness a accident or crime and just don't want to get involved?

Answer 1

united-states

It is not required for a person to formally assert a fifth- or a first-amendment right when questioned by the police.

One can simply be silent, refuse to answer any questions, without giving any reasons. But probably more effective and just as legal is to say "I won't answer any questions until I have talked with a lawyer. I want a lawyer, now."

That is perhaps less likely than using the words "plead the fifth" to be assumed to be a confession of guilt, although some people and some police may take almost anything as a confession of guilt.

By the way some of the points you distilled from the video (which I have not watched yet) are correct, some are half-truths, and some are quite incorrect. For example:

The 5th amendment was not designed as a shelter for the guilty (despite it often being used as such). It was designed to help prevent you from unknowingly incriminating yourself.

As a matter of history, this is quite incorrect. It arose historically out of a reaction to government procedures deemed oppressive. See https://law.stackexchange.com/a/63690/17500 for more detail. But helping people avoid unintentionally incriminating themselves is one of its major current functions.

You can't talk your way out of getting arrested.

Sometimes you can, but it is never safe to count on it. You can't know in advance if it will work, and more often than not it doesn't.

Everything you tell the police can be used against you but not to help you.

Not quite. If your statement is recorded, as is likely nowadays, the whole statement must be given to your lawyer and entered into evidence if you are eventually charged. (See Brady vs Maryland) Things said in your own favor may be discounted as self-serving, but the judge and jury will still hear them. But they can be very risky.

Answer 2

The speaker in the video, James Duane, published a follow-up book, You Have the Right to Remain Innocent. To summarize it:

Don’t talk to police. Don’t plead the fifth. Plead the sixth.

These are literally the titles of the three chapters of the book. His advice, again literally, is to pronounce the four words, I want a lawyer, not preceded by “maybe”, “my friend says that” or indeed any other words, and make no other statements until said lawyer makes an appearance.

Answer 3

You must plead the Fifth under the following circumstances. 1: during a custody interrogation, where you want to terminate the questioning. 2: when testifying in a legal proceeding (and not guaranteed immunity). 3: when anyone suggests that you have committed a crime and you do not wish to deny that you committed the crime. The latter is a consequence of Salinas v. Texas, where during a non-custodial interrogation police implied that defendant may have committed a crime, and he did not deny it. As the court said,

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “ ‘must claim it.’ ”

This is known as an adoptive admission, where silence in the face of an accusation is construed as admission. However, "failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary", and this sometimes includes "threats to withdraw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted". You must, however, explicitly invoke the 5th during a voluntary interview.

Answer 4

Pleading the fifth is only technically necessary to defeat a court order or legal requirement to compel testimony, outside a court order a person's right to freedom of speech includes the freedom not to speak. So, if you would prefer, if you choose not to speak to police when they ask you questions, you can assert your First Amendment rather than Fifth Amendment rights. I'm not sure if this answers the practical question of whether you can invoke some right that will make it less likely that the police or another person would infer your guilt from the refusal to answer questions. In some cases you might have a good reason besides your personal conviction not to talk to them, like if you are a doctor and are being asked confidential questions about a patient. Ultimately however, the police are not required to ignore your behavior when choosing who to investigate merely because it is your right to engage in the behavior.