Fifth Amendment Privilege Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution provided that no person can be compelled to be a witness against himself or herself. We see this come up in the context of civil and criminal proceedings and it is very important to discuss the factual ramifications of giving testimony or providing documents or other information if you stand accused of illegal behavior. A valid Fifth Amendment scenario can exists even if there is only a potential for criminal culpability, however remote or slight. An experienced criminal defense lawyer can make all the difference in protecting your Fifth Amendment rights and keeping you from potential criminal liability. In many instances criminal cases can go by the wayside when the privilege is successfully asserted in court with your lawyer’s assistance.

As the Fifth Amendment states that no person will be compelled in any criminal case to be a witness against himself it protects a person from giving potentially incriminating evidence against themselves even if they are perceived as a victim in a case. Pursuant to Miranda v. Arizona, 384 U.S. 436, 444 (1966), once a suspect’s rights have been read, any silence that follows is not to be interpreted as having an admittance of guilt. As for limitation, this privilege does not apply to corporations nor does it apply to a custodian of corporate records who, if they were to produce those records, would incriminate the corporation when they respond to the order. There are certain factors a court will look at to determine if the Fifth Amendment privilege is applicable and appropriate, starting if the witness is qualified or competent and the evidence is admissible, and the relevance of the evidence depends on fact. If you are concerned about giving testimony or documents as an individual in a case after receiving a summons to appear in court, you should seek counsel to determine if the facts present a valid basis to invoke your Fifth Amendment privilege. The Law Office of Patrick J. Murphy has the experience you will need to guide you through the criminal justice system and to determine if you have a Fifth Amendment privilege in any given situation.

A witness’ ability to invoke his Fifth Amendment privilege depends on whether that witness’ testimony might be able to be used in a criminal prosecution, or if that testimony might lead to other evidence that might be able to be used. This is illustrated in Commonwealth v. LeClair, 17 N.E.3d 415 (Mass. 2014), where the defendant was accused of assault and battery on his girlfriend while his friend, Sheehan, was present. During cross-examination, the defendant’s attorney asked of Sheehan’s history with drugs or drug use. At that time, Sheehan chose to invoke his Fifth Amendment privilege, but the judge made him respond to the questions. Upon the advice of his attorney, Sheehan chose not to answer any more questions about the drug use and the judge told Sheehan that his refusal would leave him in contempt of court. Upon appeal, the court held that Sheehan should have been able to invoke the Fifth Amendment privilege. The court reasoned that privilege can be invoked when a witness believes that their testimony might be used in a criminal case or might lead them to additional evidence that could be used in the case. The court also stated that if Sheehan had answered the questions, he would have admitted to violating drug laws and would have incriminated himself, and if that were to have happen an additional investigation would have had to had been performed regarding that. The court went on to say that it does not matter if the court absolutely would prosecute and perform an investigation had Sheehan not invoked his Fifth Amendment right, but the fact that they could is what was important and controlling.

There are also many cases where a witness was the first aggressor or an alleged victim failed to tell the police the truth about what happened when a defendant has been arrested or charged. There are also cases where giving testimony or documentary evidence could expose tangential or peripheral matters that could be very incriminating. Accordingly, the Fifth Amendment privilege can be a complicated privilege to invoke and it is difficult to determine when it applies. If you find yourself in a situation where you want to invoke your Fifth Amendment privilege, you will need a Massachusetts criminal defense attorney to assist you in working through the criminal justice system. The Law Office of Patrick J. Murphy has successfully advised and guided clients through cases involving privilege in Massachusetts for decades. Put Attorney Murphy’s skill and expertise to work for you.  Contact the Law Office of Attorney Patrick J. Murphy today for a confidential and free assessment of your case by calling 617-367-0450 or by filling out the contact form on our website.  

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