When it comes to the issue of when you can assert your Fifth Amendment right this is something that people do not understand and they have to gather their information from watching TV and listening to other people. The reality is there are only limited circumstances where you can assert your Fifth Amendment right and they usually have to do with you possibly saying something that can incriminate yourself.
A lot of times people will take the witness stand and they will attempt to assert their Fifth Amendment rights because they don't want to testify and they will be quickly overruled by the Judge in order to testify. And the Judge can even hold them in contempt, put them in custody if they refused to testify. A lot of people are shocked by this, but the reality is sometimes you're not going to be able to keep your mouth shut if, for example, you are a witness to a crime.
Where you can attempt to get around this issue related to the Judge ordering you to testify is if you have an attorney for example. That attorney talked to you and listened to your story and then the attorney advised you to assert your Fifth Amendment right. So, unless it's a real situation where your attorney has advised you not to say anything because you may actually say something that incriminates yourself, you're going to have to testify. Sometimes people hold information that could help a party, the prosecutor or the defense, even in a civil case, but if they gain that situation out, could subject that person to incriminating themselves, being prosecuted, being arrested and being punished.
Can You Assert Your Fifth Amendment Right If Police Try To Talk To You?
The reality is if the police try to talk to you about anything, you can just choose to remain silent and not say anything. You don't necessarily have to say I'm asserting my Fifth Amendment right. You could say that, but the reality is you could say – listen, I'm just not going to talk to you. I don't want to talk to you. I'm advised by my attorney not to talk or I don't want to talk to you.
So, a lot of times the police will come up and ask investigative questions and you don't want to say anything because you feel you may incriminate yourself or you may incriminate somebody else. At that point, you can just say nothing to the police. In order to force you to try and testify, the police are actually going to have to get you on the witness stand and then the prosecutor will ask you questions.
So, if you're in a situation where you feel like you may be incriminating yourself in the future because the police come and talk to you, you're the best bet is to get in front of an attorney, talk to them, let them know what's happening and let the attorney help you make the best decision as far as whether you are going to assert your Fifth Amendment right. A lot of times when we do these criminal cases, a witness will take the witness stand and I will say, Your Honor, I think that the witness should be advised by counsel. And then the Judge will get a lawyer, the lawyer will talk to them, get their story under the cloak of the attorney-client privilege and then the lawyer can properly advise them as to whether or not asserting their Fifth Amendment right is the best move for them and whether it makes sense under their circumstances.
So, if in doubt when it comes to the Fifth Amendment right, we always say as criminal defense attorneys – and I've been doing this for twenty-five years – keep your mouth shut don't say anything. You're usually never going to be able to talk your way out of anything with the police. Usually, anything you can say is going to be used against you. A lot of times things are twisted, and you didn't mean it that way. So, the best bet is to keep your mouth shut and then you're not going to have any issues when it comes to incriminating yourself and that's when I see most people getting themselves in trouble and giving the prosecutors the best evidence is when they try to talk to the police and talk their way out of a situation and it ends in disaster and a criminal conviction later on.