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How Does The Fifth Amendment Apply To Criminal Defense?

A lot of people like to throw the Fifth Amendment around like they know what it is how it works. Unfortunately, it's not as clear and easy as one might think if you don't have the legal background. Basically, you can use the Fifth Amendment if the prosecutor or somebody else is trying to get you to testify and you might say something that would incriminate yourself.

For example, somebody is being called as a witness and they themselves also might have committed a crime. They or their attorney of their behalf can plead the Fifth and basically say I'm not going to say anything because I'm fearful that I might incriminate myself.

Risk of Being Prosecuted

But listen to that language. You actually have to be in jeopardy of getting criminally prosecuted. You can't just plead the Fifth because you want to or because you're a witness in a case and you don't want to testify against your spouse for example, because they are accused of committing domestic violence against you, so you want to plead the Fifth. If you're not going to say anything to incriminate yourself, the judge is not going to let you do that. They're going to order you to testify anyway or risk contempt of court.

The bottom line is, before you can plead the Fifth in a case and assert your Fifth Amendment rights to protect yourself from making an incriminating statement, you're going to need to have grounds to do so. You're going to need to consult with an attorney and that attorney must be able to say to you yes, if you did testify in this case there's a chance they could ask you questions about an area that would get you to possibly incriminate yourself. Then you would have the legal grounds to assert your Fifth Amendment rights.

Right to Remain Silent

The bottom line is, if the police are trying to interrogate you and ask you questions, you absolutely have the right to remain silent and if you remain silent, then they can't use that against you in a court of law. It's when people start trying to talk that they get themselves in a bad position because a lot of times they say things that are inconsistent with the evidence. Then they want to plead the Fifth Amendment and by then it's too late.

They've already done or said something that has incriminated them and put them in a bad position. Anybody giving a statement that the prosecutors are going to later use in a criminal case, that's usually the best evidence the prosecutors have because it's very difficult to refute when people say things that incriminates them, because most times people aren't going to say anything that's going to incriminate them because, obviously, they don't want to put themselves in a bad position and get themselves arrested and get themselves in trouble.

If the police or prosecutors have a statement where you've actually said something against yourself that is a very powerful piece of evidence. I've had some big murder cases where clients have made statements and the prosecutor will try – if it's video tape – they will use the video.

That will be there primary evidence because it's a wonderful thing for both the prosecutor and a defense attorney to have a taped statement from somebody that helps your side. Whether it helps the people of the state of California prosecute somebody for a crime, or whether it helps the defense prove that the main witness in the case is not credible and is unreliable. So, any statement you have that contradicts them or makes them look bad or attacks the elements of the case is wonderful for either side.

Develop a Strategy with your Lawyer

So, the bottom line is this – before you start talking about pleading the Fifth Amendment right either in court or to your attorney or to the prosecutor, you better sit down with your own criminal defense attorney. Tell them what's going on. Explain the scenario.

Explain the context of why they're trying to ask you questions and then that a criminal defense lawyer can obviously give you sound advice as to whether or not you actually can plead the Fifth Amendment, how to do it, under what circumstances, whether it's actually in your best interest to plead the Fifth in Los Angeles, and what the other things you're going to do are in order to protect your rights, your freedom, your interest in any criminal case in LA.

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