There are many myths associated with the highly publicized “Taking the 5th” in the American criminal justice system. Obviously taking the 5th refers to the 5th amendment. It specifically refers to the self-incrimination clause of the 5th amendment. First of all, anyone can take the 5th in any proceeding if you feel you are going to incriminate yourself with your response. Therefore, a person can take the 5th in both a criminal trial or a civil trial or any other proceeding taken under oath. Secondly, you have to take the 5th on any given issue the first opportunity you have to do so. If you fail to take the 5th and answer questions relating to a given issue, it is forever waived. The 5th amendment protection pertains only to testimony, not to physical characteristics. Moreover, in the American criminal system a prosecutor cannot comment on a person taking the 5th amendment or invoking your Miranda rights. So when is this privilege unavailable you ask? First, if you are granted immunity from criminal prosecution then you can no longer take the 5th amendment. Use and derivative use immunity means they can’t use anything you say against you and they also cannot use anything derived from that statement against you. A second situation where the privilege is unavailable is if the statute of limitations has run on the crime meaning you can no longer be prosecuted for the crime. If either of these situations occur, the 5th amendment privilege is no longer available. Finally, if a criminal defendant does take the stand and they are asked questions that are the proper subject of interrogation, they can no longer take the 5th. Basically, a criminal defendant is not allowed to take the stand and say what they want on direct examination and then take the 5th when the prosecutor attempts to cross examine them. Hopefully this information helps clear up some of the truths and myths associated with “Taking the 5th Amendment”.
About John Marshall
Founding partner at The Law Offices of John Marshall.