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Taking the Fifth: What does it really mean?

The Fifth Amendment to the U.S. Constitution includes the right to refuse to make statements that would incriminate you. This, however, does not cover as wide a range as it may seem at first glance.

Who is protected?

The relevant part of this amendment protects individuals against being forced to confess to a crime. Individuals, in this context, means people, as opposed to corporations. Thus, corporate counsel would not be able to invoke the Fifth to avoid testimony that would incriminate the company but not the individual who is testifying.

What kind of testimony is included?

The other element of a successful Fifth Amendment claim is that the testimony in question is likely to incriminate. The defense attorney would need to substantiate a claim that the proposed testimony could be used against the witness to convict him or her. The level of likelihood is an issue that will depend on the particular circumstances of each case.

It is also important to note that the protected material is specifically testimony. This means a written or verbal statement. Other types of evidence can indeed be compelled, even if they are likely to incriminate. For example, the government can make you provide a DNA sample or take a urine test - the Fifth does not apply in this context.

When the Fifth Amendment does apply, it ensures that one cannot be forced to testify and that prosecutors and judges may not comment on or draw conclusions from the refusal to testify. As with many other rules, there is an exception. If the defense attorney or the witness somehow invites a discussion of the decision to remain silent, the prosecutor or the judge may then proceed to discuss it.

Exceptions and qualifications

There is one type of witness who can be forced to testify. If prosecutors grant a witness use immunity for testifying in a criminal trial of another person, that witness must testify, as prosecutors have already agreed not to use the testimony for future prosecution of that witness.

Invoking the Fifth also does not mean that witnesses or defendants can completely opt out of taking the stand. In most cases, they will be sworn in and then refuse to answer specific questions that would elicit incriminating answers. Sometimes judges will allow a witness not to be called to the stand at all, but this permission needs to be obtained in advance. Otherwise, the witness may run the risk of being charged with contempt of court.

If you have concerns about being forced to give potentially incriminating testimony, whether as a criminal defendant or a witness, you should consult a lawyer. An experienced attorney can help you make sense of your situation and develop an effective strategy to protect your rights.

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Law Offices of Harris & Literski
123 Brighton Lake Road, Suite 205
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