Fifth Amendment: Right to Remain Silent

The inspiration from this post comes from an article that you may wish to read. It is an article that describes how one attorney took his client’s rights so seriously that he ended up in contempt of court because of it- and how one judge can be so far off base that having a dedicated attorney is not only a benefit, but an absolute necessity. See this ABA article: “Law Firm Says Judge Jailed Defense Attorney for Telling Client to Take the Fifth.”

The Fifth Amendment of the United States Constitution provides the right to remain silent, it is also less commonly known as the right not to incriminate oneself while testifying in court or speaking with law enforcement or prosecutors. You may choose to waive that right and confess, but all defendants are to be made aware of the right to remain silent.

The Fifth Amendment of the United States Constitution is mirrored by the Pennsylvania Constitution in Article I, Section 9, which states that an accused cannot be compelled to give evidence against himself. The Pennsylvania courts have interpreted the two provisions together, and use federal standards when examining the Pennsylvania privilege.

The right applies any time a witness (not just the defendant but any witness) is asked to testify or talk about a subject that may implicate him in a crime. If the witness thinks that his or her statement will show criminal involvement, then he or she has the right to take the Fifth and refuse to answer the question. This right applies anytime the statement may be used against the person, not just at trial, but at any time when the person is asked a question by judicial officers or law enforcement, from initial interrogation to the appeal.

Be careful, because even in a civil proceeding, if the statement could cause criminal proceedings, then the witness may take the Fifth. The same applies to an administrative proceeding. If you are in front of the state licensing board or the employment board or a similar board you have the right to take the Fifth there as well.

An attorney should be prepared to object to any question which may incriminate the witness- especially if the witness is also a defendant. Failure of the attorney to make an objection can result in criminal prosecution (for an ordinary witness), conviction (for the defendant), and a claim of ineffective assistance of counsel (to which every defendant has a Constitutional right).

If a judge has compelled a person to testify despite their claim of the Fifth Amendment, it is grounds for what is called reversible error. Reversible error means that upon appeal, the appellate court will reverse the trial court’s decision and send the issue back for a new trial. Compulsion was what the judge was attempting to do in the article which inspired this post.

The privilege does not extend to consequences which would be non-criminal; this includes liability in a civil suit, community disgrace, loss of employment, or even something which would cause a loss of probation if it does not create any criminal liability. The court will also not stop the jury from making any adverse inferences or assumptions based on the refusal to answer.