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Asserting the Fifth Amendment in Criminal Defense

The Fifth Amendment has many parts, and each is very different from the other. Criminal defendants are often faced with the part of the Fifth Amendment that states that a person should not be made to incriminate themselves, called the privilege against self- incrimination. Television would have us believe that asserting the Fifth Amendment is (1) instantly incriminating, and (2) available to anyone at any time. Neither of these representations are true. The policy behind preventing self-incrimination comes from the following short phrase in the Fifth Amendment of the United States Constitution: “No person shall. . . be compelled in any criminal case to be a witness against himself.” That is it.

That brief statement packs a punch though. If you read carefully you see that the privilege is only available to criminal defendants, not civil. If you are not facing criminal charges, you can’t claim the privilege and must answer the questions. It also says that a person cannot be compelled. This means that you, as the criminal defendant cannot be forced to take the stand, but you may choose to do this. An experienced criminal defense attorney can help you decide when it is a good idea to testify and when it is not. Further, note that the Fifth Amendment states that a person cannot be compelled to incriminate him/ her self. As a criminal defendant, the prosecutor cannot make you take the stand and say things that imply you committed a crime or did something bad. The prosecutor can ask you questions that make you look bad if you are on the stand. You can simply refuse to answer the questions that make you look as if you did something wrong, and the prosecutor cannot hold that against you. Last, it is important to realize that the Fifth amendment says a defendant cannot incriminate him/her self. A defendant can be forced to answer questions that are not about him/her self. The prosecutor could ask you, and make you answer questions, about a different person or something that cannot hurt you if it isn’t related to the crime you are charged with. There are other rules that may limit what the prosecutor can ask, but we will not discuss them here.

Why do people assert the Fifth amendment? The most important reason is to avoid accidentally giving the prosecutor evidence against you. The more information you give out, the more the prosecutor can pick apart and use against you later. Once you start answering questions, the opportunities for inconsistencies in your story or accidentally saying something that makes you seem like you knew more than you did or had intentions that you did not have, are extensive. It could be as simple as the appearance to the jury. Jurors are regular people, and no matter how hard attorneys try to get a fair jury, there are biases. The danger is that the jury could listen to the criminal defendant and become unsympathetic to his/her story.

People claim the privilege against self-incrimination for many reasons, one of them being to prevent themselves from being guilty of perjury. Perjury is lying while under oath and is a crime. Claiming the privilege against self-incrimination is not a crime. If you are asked a question that would seriously damage your case, it’s better to claim the privilege than to lie while under oath. The prosecutor may have evidence that will prove you are lying, and then you have committed a crime and ruined your credibility. The privilege against self-incrimination is there to give a defendant the most-fair trial possible. Despite what TV may imply, it does not make a person automatically guilty.

The Fifth Amendment is a powerful tool to protect people not only during trial, but also during arrest. In Salinas v. Texas the Supreme Court determined that an arrestee’s silence when asked incriminating questions could be used against the arrestee later because the arrestee did not claim the privilege against self-incrimination. Basically, the prosecutor was able to use the arrestee’s refusal to answer any questions to police during an arrest to make the arrestee look like he was guilty. Had the arrestee simply told the police that he was silent because he had the right to not incriminate himself, the prosecutor would not have been able to even talk about the arrestee’s silence during booking.

A criminal defense attorney is extremely valuable when determining whether to testify or remain silent. Retaining an attorney can be as easy as calling David Cronin at (904) 239-6047 for a free consultation today.