Even if you have never studied law, nor surrendered to an examination for the registration of a lawyer, you’ve probably heard the phrase “invoke the fifth”. It has become part of our slang national, so the majority of americans know that they have the right not to answer questions by police both in custody and in court. The right against selfincrimination is described in the fifth amendment to the Constitution of the United States and also extends to state and local jurisdictions. When someone exercises this right, usually we say that “invoked the fifth”.
The Constitution grants this right quite simply: “be Not compelled [to any person]… in any criminal case to witness against itself…”. However, as with most constitutional rights, this is subject to interpretation of courts and tends to generate a strong debate.
This article focuses on the clause-incrimination of the fifth amendment in the legal procedures. For more information about your right to remain silent under police custody, refer to the section Miranda rights FindLaw. See Double jeopardy; How does a jury? and The appeal, the order of the court and the process of application of habeas corpus to learn more about other provisions of the fifth amendment.
The origin of the invocation of the fifth
The right against self-incrimination comes from the refusal of the puritans to collaborate with interrogators in SEVENTEENTH-century England. Usually the coaccionaba or tortured into confessing their religious affiliation and were considered guilty if they remained silent. The English law granted its citizens the right against selfincrimination to half of the SEVENTEENTH century, when a revolution established greater power in parliament.
The puritans who fled religious persecution brought this idea to the united States, where they eventually become part of the bill of Rights. At present, the courts have ruled that the right against self-incrimination includes evidence-either testimonial or communicative in police interrogations and legal proceedings.
Provide expert witness testimony in a legal proceeding
At trial, the fifth amendment gives a defendant the right not to testify. This means that neither the prosecutor, nor the judge, nor the lawyer of the defendant can force him to take the stand against his will. However, a defendant that does choose to testify cannot choose to answer some questions and not others. Once the defendant takes the stand of the witnesses, it is considered that it resigned to this specific right of the fifth amendment during the trial.
When a defendant invokes the fifth, the members of the jury are not permitted to take into account the refusal to testify when deciding on the guilt of a defendant. In the case of 2001 Ohio c/ Reiner, the Supreme Court of the united States. held that “a witness may have a reasonable fear of prosecution and yet be innocent of any crime. The [right of the fifth amendment right against self-incrimination] protects an innocent person who could be incriminated by circumstances ambiguous”. This case reinforced the rule above which indicated that the prosecutors may not ask a jury to infer guilt based on the refusal of a defendant to testify in his own defense.
The accused may also exercise your rights of the fifth amendment during civil litigation if the witness would expose to criminal charges. However, do not enjoy the same protections against jury bias with respect to the liability. This means that a jury is free to make inferences when a defendant chooses not to testify in a civil trial for fear of self-incrimination. The civil respondents generally claim ignorance (“I don’t remember”) instead of invoking the fifth in these cases.
How a witness can invoke the fifth?
In a criminal trial, not only the accused person enjoys the right to the fifth amendment to refuse to testify. The witnesses called to the witness stand can refuse to answer certain questions if answering them the would involve in some type of criminal activity (not limited to the cause on trial). For example, the witnesses (and the accused) in a trial for organized crimes generally invoked the fifth amendment.
However, unlike defendants, witnesses who exercise this right may do so selectively and do not waive their rights at the time of answering questions. Also, unlike the accused, witnesses may be forced by law to testify (usually through a subpoena).
Does the fifth amendment apply to fingerprints and blood tests?
The right of the fifth amendment right against self-incrimination does not extend to the collection of DNA or fingerprints in connection with a criminal case. The Supreme Court has stated that the privilege extends only to evidence communication, and the DNA and fingerprints are not considered evidence by witnesses.
If you have more questions about your right to the fifth amendment right against self-incrimination, or need representation, consider the idea of consulting a lawyer who specializes in criminal law.