Taking the Fifth

The Fifth Amendment to the Constitution states plainly that no one “shall be compelled in any criminal case to be a witness against himself”. Many people call this refusal to testify “taking the Fifth” or “pleading the Fifth”. It is also referred to as the right against self-incrimination.

Criminal defendants may take the Fifth in a criminal trial. Rather than testifying, the defendant must indicate his intention not to testify to avoid incriminating himself. His attorney, the prosecutor, and the judge cannot force him to testify. However, if the defendant takes the stand and answers a few questions, then tries to take the Fifth, he will be required to continue answering questions. Once you take the stand, you waive your right against self-incrimination for the rest of the trial.

Jurors cannot consider a defendant’s refusal to testify against himself when deciding the verdict. The Supreme Court explained that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing.” Ohio v. Reiner, 532 U.S. 17 (2001). In other words, a defendant concerned that his actions, even if arguably innocent, will be held against him and result in criminal liability is protected from negative inferences drawn by jurors.

Any witness in a criminal trial may take the Fifth to avoid self-incrimination. Witnesses, unlike defendants, may refuse to testify as to certain questions only. They do not waive their right against self-incrimination by answering a few questions on the stand. The prosecution may try to compel these witnesses to testify by using a subpoena.

In civil cases, witnesses who fear that their testimony will lead to criminal charges against them may take the Fifth. Unlike in criminal cases, jurors may make whatever inferences they like about the witness given his refusal to testify. There is always a question in civil cases as to whether the defendant’s fear of self-incrimination is real and substantial. Marchetti v. United States, 390 U.S. 39, 453 (1968).

If you are facing DUI charges, seek out an attorney who knows the Oklahoma criminal law system inside and out. Clint Patterson, Esq., of Patterson Law Firm, a former Tulsa prosecutor now using his trial experience and expert-level knowledge of DUI science to defend drivers, has the experience and the insight to evaluate the strengths and weaknesses of your case. To schedule a case evaluation, visit Patterson Law Firm online or call Clint’s office at (918) 550-9175.