When it comes to asserting your Fifth Amendment right, it's important to understand that there are only limited circumstances where this right can be invoked. These situations typically involve the risk of saying something that could incriminate you. This understanding can help you feel informed and clear about when and how to assert your Fifth Amendment right.

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.

It's crucial to understand that if you refuse to testify, the Judge can hold you in contempt and even put you in custody. This may come as a shock, but the reality is that sometimes, especially if you're a witness to a crime, you may not be able to remain silent.

One way to navigate the issue of being ordered to testify is by having an attorney. Your attorney, after hearing your story, can advise you on whether 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, it 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. My attorney advises me 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 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.

Suppose 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. In that case, your 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. This step is crucial and will provide you with the necessary guidance and reassurance.

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 counsel should advise the witness. 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.

Remain Silent

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. This is not just a suggestion, but a necessity to protect your rights. 

You're usually going to have to find a way to talk your way out of something 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.

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. It ends in disaster and a criminal conviction later on.