In Miranda v. In a typical case, police will take an arrested person they wish to question to an interview room at the station and may handcuff the person to a wall or desk. The person is clearly in custody. Before beginning the questioning, police will have the person sign a written Miranda waiver of the right to remain silent and the right to have counsel present as well. The person has now waived his right to remain silent and his answers can be used against him.
It is usually a bad idea to waive your right to remain silent following arrest. If you wish to cooperate with police, you can do so much more effectively with the assistance of counsel. Your case will not be dismissed. However, the prosecutors will not be allowed to use any statements you made while in custody during police questioning. You can always refuse to talk to federal agents or the police. But, in these settings you have the right to decline to speak to agents, and there are many reasons why you should exercise that right.
The Supreme Court has held that forcing government employees to answer questions about potentially criminal conduct on pain of loss of employment constitutes compelled testimony under the Fifth Amendment. Because the Amendment only protects us against state action, the same is not true for employees in the private sector. For a more lengthy treatment of this subject, you can read this blog pos t. Yes, you can plead the fifth in a civil trial or deposition. But, whether you should or should not do so is often an issue that requires you to waive certain risks and benefits.
If you refuse to testify in a civil matter, there can be adverse consequences for the case. The decision not to testify deprives you of the right to tell your side of the story, and if there are no other witnesses you can call, this may mean that you may not be able to win the case.
Also, if you invoke the Fifth Amendment during an earlier stage of proceedings, such as a pretrial hearing or in a discovery deposition, you will likely later be barred from testifying. Yes, you can claim the Fifth before a grand jury.
Before we get into the details, recall that a grand jury is a group of 16 to 23 people impaneled to investigate cases and issue indictments. The prosecutor presents her witnesses, documents and other evidence to the grand jury and it decides if there is probable cause to indict. So how does the grand jury implicate the Fifth Amendment?
Because compliance with a grand jury subpoena is mandatory. Refusing to testify can result in a fine or imprisonment for contempt. So, the 5th Amendment right applies. Of course, many grand jury witnesses have no need to plead the Fifth. The classic example is the man caught standing in the teller line during a bank robbery. Or, the example above with the witness to a car accident. Other cases are not so clear.
Might the prosecutor suspect you were in on it? The best way to decide if you should plead the fifth is to consult an attorney with experience in grand jury matters. The attorney will review the facts, probably talk to the prosecutor, investigate the facts, and decide if you should take the Fifth.
Your lawyer may counsel you to take the Fifth even though you claim innocence. To repeat what has already been said in this post — you can take the Fifth even if you are innocent, including before a grand jury. Even if you claim innocence, the government might still use your testimony against you if it can be combined with other evidence to show guilt. Even if you deny knowledge of his fraudulent activities, the prosecutor can question you before the grand jury about the extent of your relationship.
You may therefore decline to answer questions about your relationship with your work colleague on Fifth Amendment grounds even if you claim ignorance of his alleged fraud. If your attorney notifies the prosecutor of your intentions, your testimony may be called off.
If the prosecutor does not withdraw the subpoena, you still have to appear. Federal grand juries usually sit at the courthouse and your attorney can accompany you there. However, your lawyer will not be able to enter the grand jury room itself.
In some cases, you can invoke the Fifth Amendment in response to a subpoena to produce documents. This is so because the act of production itself can indicate guilt. Here is how one federal Circuit Court of Appeals explained it:. Specifically, the act of production communicates at least four different statements.
It testifies to the fact that: i the documents responsive to a given subpoena exist, ii they are in the possession or control of the subpoenaed party; iii the documents provided in response to the subpoena are authentic; and iv the responding party believes that the documents produced are those described in the subpoena. This does not mean that you can simply ignore the subpoena.
However, in Griffin v. California and Ohio v. Reiner, the Supreme Court determined that a jury may not infer guilt if a defendant refuses to testify. Instead, they must only base their judgments on the evidence and testimony provided, not the lack of a testimony. Because of this, you may be tempted to plead the fifth during your trial, but you should only do this with the express legal advice of your attorney. Pleading the fifth is an all or nothing right, meaning you cannot choose to take the stand and then plead the fifth.
Essentially, once you are on the stand, you are legally compelled to answer all questions asked of you by your attorney and the prosecution.
If you plead the fifth, that means you are refusing to testify in court for the entirety of your trial. Thus, you are missing out on the opportunity to defend yourself and state your side of the story. Depending on the circumstances of your case, this may be your best option.
Your attorney may be able to use other witness testimonies, expert opinions, and evidence to get your charges reduced or case dismissed. Search Print. The Fifth Amendment can be invoked only in certain situations. An individual can only invoke the Fifth Amendment in response to a communication that is compelled , such as through a subpoena or other legal process. The communication must also be testimonial in nature. In other words, it must relate to either express or implied assertions of fact or belief.
For example, a nod would be considered a testimonial communication for purposes of the Fifth Amendment.
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