Taking the 5th

Casey Anthony
Casey Anthony

The fifth amendment to the U.S. Constitution states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is the language “nor shall be compelled in any criminal case to be a witness against himself” that is the foundation for what has entered common parlance in the United States as “taking the fifth.”

This precious constitutional protection afforded U. S. citizens is aimed at coerced confessions, one of the greatest abuses in the criminal justice system.  Many people do not realize that some legal systems have outlawed confessions entirely because of the moral hazard they represent to law enforcement personnel. The temptation to use force, torture or other means to get a suspect to confess is eliminated if a confession is always inadmissible.  However, in the U.S. system a confession is admissible against the accused so long as it is obtained legally, i.e., without violating the accused’s constitutional rights.

In the setting of a criminal trial, this right usually is referred to as the accused’s “right to remain silent.” As a practical matter this means the prosecution can’t call the defendant to the witness stand and examine him about the facts of the crime. Rather, the accused can sit on his hands throughout the trial and never make a peep. There are even rules that prohibit what the prosecution can say about it.  For instance, in a trial where the accused has not testified it is improper for the ADA to say, “We would all like to know what Mr. Jones, the accused, has to say about this crime.  He could get up there on the stand and tell us about it, but he chose to keep his mouth shut.  It makes you wonder what he is hiding, doesn’t it?”

What happens if the defendant decides he does want to testify on his own behalf? If he does, all bets are off.  Once he takes the stand and starts telling his story, he has opened the door for the state to go after him on cross-examination.  In other words, the defendant can’t tell his version of the story and then invoke his fifth amendment protection when the water gets hot.  If he’s in for a penny, he’s in for a pound.

Any attorney who has ever represented a criminal defendant knows that the decision as to whether the accused will testify is one of the toughest calls he has to make. Some attorneys never allow the defendant to testify, others don’t have a hard and fast rule about it, but weigh the pros and cons.

Another interesting twist on taking the fifth sometimes arises in the context of a civil case.  Suppose in a car wreck case the injured party’s attorney ( the plaintiff’s lawyer) sues the other driver alleging his negligence caused the wreck. Witnesses at the scene testify that the defendant (the alleged negligent driver) acted strange, was unsteady on his feet, had blood shot eyes, slurred his speech.  The defendant refused a breath or blood test.

Remember that in a civil case, the plaintiff has the right to take the defendant’s deposition, or to call him to the stand during trial. Here’s how it might go:
“Mr. Jones, is it true that in the hour and half before this accident you consumed a twelve-pack of Bud?”

Mr. Jones pauses.  His face turns bright red, sweat pops out on his forehead.

“Mr. Jones, did you hear my question?”

Jones says, “On the advice of my lawyer, I refuse to answer that question.  I take the fifth.”

For the plaintiff’s lawyer this is as good as it gets in the courtroom.  It’s manna from heaven.

For the defendant, it’s Scylla and Charybdis time.  There is no good way out for him.  Either he tells the truth and cuts his own throat, lies and makes things worse, or refuses to answer and confirms the jury’s suspicion that he was indeed drugged out or drunk when the accident happened.

The author who wants to build drama and conflict into a courtroom scene can play with these themes until the cows come home.

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