| Read Time: 3 minutes | Criminal Defense
jury court for someone pleading the fifth

Pleading the fifth in real life is not as funny as Dave Chappelle’s skit on pleading the fifth, however, it may be necessary to protect yourself from self-incrimination.

The Fifth Amendment of the United States Constitution guarantees that no person in a criminal case can be compelled to be a witness against themselves.

An experienced criminal defense attorney at Moses & Rooth can help you determine if pleading the fifth is the right option for you when testifying.

Pleading the Fifth as a Criminal Defendant

In Malloy v. Hogan, the U.S. Supreme Court ruled a defendant has the right to plead the fifth in State criminal cases, as well as, Federal criminal cases. As a criminal defendant, you can choose not to take the stand in order to protect yourself from self-incrimination, however, once you have chosen to do so you have waived your right to testify.

Criminal defendants cannot choose to answer some questions and not others. It’s an all or none scenario in criminal cases.

In Griffin v. California, the U.S. Supreme Court ruled that a jury may not infer that a defendant is guilty because the defendant pled the fifth and refused to testify. The U.S. Supreme Court later strengthened this ruling in Ohio v. Reiner.

Pleading the Fifth in a Civil Case

Defendants in a civil trial may also plead the fifth, but not without risk. A jury in a civil trial, unlike a criminal trial, may make assumptions if a defendant chooses not to testify.

Pleading the Fifth as a Witness

A witness, like a defendant, may assert their Fifth Amendment right to prevent self-incrimination. A witness may refuse to answer a question if they fear their testimony will incriminate them. The criminal activity that the witness fears does not have to pertain to the case at hand.

If a witness chooses to plead the fifth, unlike criminal defendants, this does not allow them to avoid testifying altogether. Witnesses subpoenaed to testify must testify, but can plead the fifth for questions that they deem are self-incriminating.

Prosecutors may offer witnesses immunity in exchange for their testimony. Witnesses with immunity will not be charged for any incriminating statements made while testifying. When immunity is not on the table there is another option. Prosecutors may offer to reduce the charges if the witness agrees to testify.

When Pleading the Fifth Will Not Protect You

Defendants cannot assert their Fifth Amendment right to protect themselves from self-incrimination against evidence the Court deems to be non-communicative.

A defendant cannot plead the fifth when objecting to the collection of DNA, fingerprint, or encrypted digital evidence. In Commonwealth v. Gelfgatt, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation filed an amicus brief in support of a defendant whose right to protect himself from self-incrimination was being threatened by an order to decrypt his computer. However, the Court ruled it was not a violation of the defendant’s rights.

Before testifying as a criminal defendant or witness let the criminal defense lawyers of Moses & Rooth in central Florida advise you on your options of pleading the fifth and protecting yourself against self-incrimination. Our lawyers have a depth of knowledge because we only handle criminal defense cases. If you fear testifying will lead to criminal charges contact us today for information on how to protect yourself.

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Andrew Moses

Andrew has been practicing criminal law his entire career. After graduating from law school he began working as an Assistant State Attorney prosecuting cases in Orange and Osceola Counties. During his time as an Assistant State Attorney, Andrew handled all types of cases ranging from misdemeanors to such serious felonies as drug trafficking and armed robbery. His experience as a prosecutor helped him gain perspective of the criminal justice system and how the government established its cases.

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