Self-Incrimination and the Fifth Amendment

As every good criminal defense attorney knows, the Fifth Amendment is your friend. It’s there for your protection. It gives you the legal right to sidestep questions for which the answers, if you chose to give them, could result in criminal charges against you.

The proceedings at which such questions arise could be investigatory, administrative, civil or criminal in nature. They might ensue as you make a deposition, testify under oath or appear before a grand jury. Regardless of the circumstances, if the answers to those questions could come back to bite you, you have the constitutional right to keep your mouth shut.

Can I Incriminate Myself as a Witness?

When testifying as a witness in another person’s civil or criminal trial, you can legally refuse to respond to any question that you feel would implicate you in some form of illegal activity. Although no witness can refuse to testify altogether, the Fifth Amendment does give you the right to choose the questions to which you agree to reply. You have the legal right to respond to some while declining to answer others.

Must I Testify as the Defendant?

If you should find yourself on the witness stand during your own criminal trial, it will be at your discretion and most likely against your attorney’s advice. The Fifth Amendment protects anyone accused of a crime from having to testify at his own trial. Neither the judge, the prosecutor nor any attorney can force a criminal defendant onto the witness stand against his wishes.

If you do decide to testify at your own criminal trial, you will automatically waive one vital protection: the right to choose which questions you’re willing to answer. This is where the permissions of the accused differ from those of the ordinary witness. Once the defendant has agreed to take the witness stand, the prosecution will expect a response to every one of its queries.

When Does the Fifth Amendment Not Apply?

A witness can only invoke his Fifth Amendment rights when he has good reason to believe that his answer could lead to his subsequent prosecution. You cannot plead the Fifth if:

• Your answer would not implicate you directly.
• Your response would not lead investigators to evidence that might subsequently incriminate you.
• The statute of limitations protects you from prosecution.

Parallel Proceedings

If you should find yourself subpoenaed to testify at a civil proceeding while facing criminal charges, a seasoned criminal defense attorney will likely advise you to call on your Fifth Amendment rights when necessary. This is for your protection. During the civil proceeding, any error or omission on your part could prejudice your criminal defense and might potentially lead to charges of perjury or obstruction of justice.

Waiving Your Fifth Amendment Rights

During your testimony, you might make selective statements about a topic for which you have previously invoked the Fifth Amendment. If this should occur, the judge may decree that you have thereby waived that privilege for the duration of the proceeding. Such a waiver of your Fifth Amendment rights would be at the judge’s discretion and would only apply to the current trial. If you should testify again at a later trial, you can legally reassert these rights.

On the other hand, if your interrogator suddenly poses questions concerning a topic for which you have already answered more-innocuous inquiries, you can safely invoke the Fifth Amendment on these subsequent questions without waiving your rights.

Is There a Time When I Shouldn’t Use the Fifth Amendment?

Although some may think otherwise, Fifth Amendment rights are not absolute. They do have their limits, and their use can sometimes cause harm. Many people feel that invoking the Fifth Amendment equates to admitting involvement, and witnesses who do so inappropriately may find themselves held in contempt of court.

When you do plead the Fifth, you must do it properly and for the right reasons. Don’t try to decide on when to use the Fifth Amendment and when not to on your own. Always take your attorney’s advice as to when and whether its use is appropriate.

Always Trust Your Criminal Attorney

The choice of whether to invoke the Fifth Amendment involves a complicated assessment of the law as it applies to your case and the facts surrounding your circumstances. An experienced criminal defense attorney who has taken the time to discuss your case and prepare your defense can help you guard against self-incrimination. Once he has made his decision in this regard, it will be in your best interests to heed his advice. If you fail to do so, you could find yourself embroiled in a situation from which extrication could prove difficult or even impossible.

The criminal defense attorneys at Weiner Law Group are experienced in all types of criminal cases and can help you achieve the best possible outcome. Call today at 702-202-0500 or fill out the contact form.