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.

Often, people will take the witness stand and attempt to assert their Fifth Amendment rights because they don't want to testify, only to be quickly overruled by the judge and compelled to testify.

It's crucial to understand that if you refuse to testify, the Judge can hold you in contempt and even order you to be taken into 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. This professional guidance can provide you with a sense of reassurance and direction in such a complex legal situation.

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 benefit a party, the prosecutor, or the defense, even in a civil case. However, if they disclose that information, it could subject them to incrimination, prosecution, arrest, and punishment. This awareness of the potential consequences can help you make more cautious decisions in legal situations.

Can You Assert Your Fifth Amendment Right If Police Try To Talk To You?

The reality is that 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 discuss this with you, and I would prefer not to.

So, often, the police will come and ask investigative questions, such as 'Where were you on the night of the incident?' or 'Did you see anyone else at the scene?', and you don't want to say anything because you feel you may incriminate yourself or someone 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.

Often, when we handle these criminal cases, a witness will take the stand, and I will say, 'Your Honor, I think 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, which means the conversation is confidential, 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. By following this advice, you can feel more secure and protected in potentially incriminating situations. 

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 won't have any issues when it comes to incriminating yourself, and that's when I see most people getting themselves into trouble. Providing the prosecutors with the best evidence is when they attempt to negotiate with the police and try to talk their way out of a situation. It ends in disaster and a criminal conviction later on.