Criminal Law

Taking the Fifth

By Janet Portman, Attorney
A defendant in a criminal case has an absolute right not to testify; not so for a witness.

“Taking the Fifth” refers to a person’s invocation of his or her Fifth Amendment right under the U.S. Constitution to refuse to give statements that could be used against the speaker in a criminal proceeding. The right attaches when people are questioned by the police (it’s the basis for the Miranda warnings); at trial; and in any other proceeding, criminal or civil, where the answers might incriminate the speaker in the future. The right is enjoyed by everyone in the U.S., not just citizens or those in the country with permission. Only individual people possess the right; to date, a corporation, which the Supreme Court has recently been given person-like attributes, cannot invoke the right.

Under What Circumstances May the Fifth Be Invoked?

The Fifth Amendment’s right against self-incrimination applies only when the following requirements are met:

  • Compulsion. The amendment protects only compelled communications. For example, people who are called as witnesses in court are required to appear and answer (or face contempt of court). Arrestees facing police interrogation are not free to leave, which supplies the needed aspect of compulsion when being questioned. In both situations, the subject may invoke the Fifth. By contrast, statements included on voluntarily prepared papers or uttered spontaneously are not compelled, and the statements usually would not have Fifth Amendment protections. (In certain situations, the government may force the speaker to testify if it grants immunity, as explained below.)
  • Testimonial. The amendment protects only testimony—that is, speech or writings that disclose information in the individual’s mind. This limitation means that the government is free to compel someone to reenact a crime; shave or dye facial or other hair; try on clothing; and provide handwriting, blood, hair, fingerprint, urine, or DNA samples.
  • Self-incriminating. Compelled testimony is self-incriminating if it’s reasonable to think that it would support a conviction or provide a link in the chain of evidence leading to a conviction. The likelihood that this will happen must be real and substantial, not just imaginary.

Defendants in Criminal Trials Who Refuse to Testify

Defendants in criminal trials, and at sentencing, have an absolute right to refuse to testify (once they take the stand and begin answering questions, however, they have waived that right). Judges, prosecutors, and counsel for any codefendants may not comment on the defendant’s decision, unless invited to do so by actions of the defendant’s lawyer. Even when prosecutors break this rule, a convicted defendant won’t necessarily secure a reversal on appeal—the appellate judges will deem the mistake “harmless error” if the government can persuade them that the error did not contribute to the verdict.

Witnesses Who Refuse to Testify

Witnesses in a criminal or civil trial cannot use the right against self-incrimination to refuse altogether to take the witness stand, as is true for a criminal defendant. Instead, they must be sworn in, and then may selectively refuse to answer questions that would tend to incriminate them. Most of the time, when lawyers for these witnesses alert the court that their clients will take the Fifth, the judge will not compel the witness to get in front of a jury to do so.

Compelling a Witness: “Use” Immunity

A witness who is not a criminal defendant in his own trial, and who has refused to answer incriminating questions, may be forced to do so when the government grants the witness “use” immunity. This is a promise, enforceable in any court in the United States, that the statements will not be used in a subsequent prosecution for crimes associated with the testimony. “Use” immunity does not extend to civil or other non-criminal proceedings.

Granting immunity to a witness does not mean that the government cannot prosecute the witness for crimes related to those statements. Instead, in any future prosecution, the government must prove that the evidence it will rely on was derived independently from the immunized testimony. For example, imagine a store clerk (A) who acted in concert with another clerk (B) to take money from the cash register. Both are charged with theft, and are slated for separate trials. With a grant of use immunity, clerk B will be compelled to testify against Clerk A. Later, at Clerk B’s trial, Clerk B’s testimony cannot be used against him. But if a witness, such as a customer, saw Clerk B surreptitiously take bills from the register, that evidence will be admissible in a criminal prosecution against clerk B.

“Use” immunity is very different from “transactional” immunity, which is rarely given. With the latter, the government promises not to prosecute for crimes related to the testimony, even when an independent source of evidence exists. In the example above, had clerk B received transactional immunity, he could not be prosecuted for the register theft, no matter how many people saw him take the money.

Immunity is normally granted by the prosecutor, not the judge. But in many jurisdictions, the court can order the prosecutor to grant immunity when the defendant’s case would be severely compromised without the witness’s testimony. For example, the judge might insist on immunity if the testimony will be the only evidence bolstering the defense’s theory of the case.

Conflicts Between a Witness’s Fifth Amendment Right and a Defendant’s Sixth Amendment Right to Cross-Examine

Judges face a tricky situation when a government witness, testifying generally against a criminal defendant, invokes his or her right against self-incrimination. The problem here is that the defendant has a Sixth Amendment right to confront and cross-examine witnesses against him. If the judge allows the witness to remain silent, the defendant’s right has been compromised, and arguably he has been deprived of a Constitutionally acceptable trial. Most of the time, the witness’s right trumps the defendant’s right. But as a result, the judge may excuse the witness from testifying or strike all or part of the testimony (that is, instruct the jury to disregard it).

Questions to Ask Your Lawyer

  • I'm the defendant in a criminal case. If I invoke the Fifth and do not testify but am convicted, is it likely that I’ll receive a harsher sentence than if I had taken the stand?
  • My codefendant can deliver devastating testimony against me. What are the chances that the prosecutor will grant her use immunity?
  • What kind of conduct on my part or my defense attorney’s will justify a comment by the prosecutor regarding my decision not to testify?

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