When it comes to movies about organized crime or the justice system in general, there are few lines more common than “I plead the Fifth.” While you may understand this to mean the character in the movie is refusing to answer the question, it is helpful to understand the concept in depth if you are facing federal charges.
If you have been charged with a federal crime or believe you are under an investigation, you are protected against being forced by the prosecutor to testify. That does not mean taking the stand in your defense is never worth it. To understand the ramifications of relying on your Fifth Amendment rights, schedule a free consultation with attorney Doug Murphy right away.
Understanding the Fifth Amendment
“Pleading the Fifth,” references making use of the rights supplied to you by the Fifth Amendment of United States Constitution. In general, the Fifth Amendment protects you from being compelled to testify against yourself. The relevant portion of the Fifth Amendment reads:
No person shall … be compelled in any criminal case to be a witness against himself.
The courts have gone on to hold that this right protects the guilty and innocent alike. It prevents the government from compelling a person from testifying to any matter that could tend to be incriminating. That goes beyond protecting actual admissions of guilt; it also protects a person from making any statement that might potentially implicate their part in criminal activity.
These protections go beyond refusing to answer certain questions. A defendant can refuse to testify at all at their own trial. In fact, the prosecution may not make mention of the defendant's choice not to testify or imply their decision implies they are guilty.
When Pleading the Fifth is Possible
Most discussions surrounding Fifth Amendment rights focus on a person testifying at their own trial. While that is a common circumstance where these rights are used, it is not the only time you can refuse to incriminate yourself.
Pleading the Fifth during a Federal Trial
The United States Supreme Court has repeatedly held a defendant cannot be compelled to testify against themselves at their own criminal trial. This right extends to both state and federal prosecutions. It is up to the defendant whether or not they choose to testify in their own defense. A defendant can choose not to testify and is under no obligation to provide a reason or explanation.
Additionally, the jury in a criminal case may not make any inference from a person's refusal to testify. This means the prosecutor cannot make any mention of the defendant's choice not to testify, and the jury is prevented from making inferences based on the refusal.
Once the decision is made to testify or not, the decision is final. A defendant that decides to take the stand cannot change their mind once they agree to testify.
Pleading the Fifth in a Civil Trial
It is important to understand that the Fifth Amendment also impacts civil cases. The Fifth Amendment allows a person to refuse to answer incriminating questions even in a civil setting. This is important, as testimony in a civil proceeding could be used as evidence at a criminal trial.
These rights work differently in a civil case, however. While a person cannot be compelled to testify in a civil setting, their refusal to do so could be used as an inference of guilt by a civil jury. The jury is allowed to make assumptions regarding the refusal to testify.
Pleading the Fifth as a Witness
You also have the right to plead the Fifth when you are a witness in a federal criminal case. Much like with a defendant, a witness may refuse to answer any questions that might tend to implicate them in a crime. This right exists even when the potentially incriminating testimony has nothing to do with the case at hand.
Fifth Amendment rights work differently for witnesses. A witness may not simply refuse to take the stand without recourse. If subpoenaed to testify at trial, the witness must appear and take the stand. They must then listen to each question and exert their Fifth Amendment rights to any question that could implicate them in criminal activity.
In some cases – particularly federal grand juries – prosecutors could offer a witness immunity for any testimony they provide at trial. This immunity could cover only what they testify to at the hearing, or it could give them blanket immunity from specific crimes they are alleged to have committed.
Additionally, prosecutors could also negotiate a plea bargain with a witness in their own case that requires them to provide testimony in another. In exchange for their testimony, the prosecutor might agree to seek leniency for the witness. In these cases, a strong federal crimes defense attorney will challenge the credibility and believability of the witness, among other things.
When the Fifth Amendment Might Not Protect You
There are some limitations on your Fifth Amendment rights that you should be aware of. These rights only protect against self-incrimination from a communicative act like speaking. These rights do not protect a defendant from providing non-communicative evidence that could be incriminating. This includes providing fingerprints or a DNA sample. The courts also have the power to order encrypted digital information to be decrypted. These types of evidence are seen by the court as forms of evidence that do not qualify as self-incrimination.
Understanding what evidence might be outside the scope of the Fifth Amendment can be difficult. A practiced federal criminal defense attorney could advise you what to expect if you are facing federal charges.
Speak with a Houston Federal Defense Attorney About Your Rights
You have powerful rights bestowed on you by the Constitution of the United States. These rights could make the difference between a conviction and an acquittal, but only if you make proper use of them.
Attorney Doug Murphy is a skilled litigator with extensive trial experience. During your trial, Attorney Murphy could advise you on the benefits and drawbacks to testifying in your own defense. While the choice to testify is yours, skilled legal advice could put you in the best position to win an acquittal. Call the Doug Murphy Law Firm, P.C. right away to schedule a free consultation.