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Taking the Fifth

We make jokes about it at parties and with our friends when we are confronted with uncomfortable situations, comments or questions, but it can be a serious consideration when you find yourself on the edge of a criminal investigation. Under what circumstances should a person actually consult a lawyer regarding something we joke about despite its importance?

Basic Right Stated

The Fifth Amendment of the United States Constitution says that no person can be compelled in a criminal proceeding to testify against him or herself. This right can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that a person reasonably believes could be used in a criminal prosecution or that could lead to evidence that might be used in or might lead to the filing of an indictment . The United States Supreme Court has been zealous to safeguard the values that underlying the privilege. It can be asserted in any proceeding in which the witness reasonably believes that information or testimony sought could be used in a subsequent state or federal criminal proceeding.

Often, a situation develops where a deposition is taken from a person in a civil lawsuit where there is also either another criminal investigation pending or an ongoing criminal case based upon information or an indictment. It is important for a lay person to know the practicalities of both state and federal criminal cases. The accused in a criminal case has the right to a speedy trial under both the California and United States Constitutions. Criminal cases take precedence over civil cases. So if an attorney has trials set in a criminal case and a separate civil case for the same day, the criminal case must take precedence and the civil case is forced to wait. Thus, theoretically the criminal matter should conclude before the civil matter where each involves the same facts and personnel. In reality, however, many times that does not occur. Criminal cases can linger for months when clients are free on bail or have been released on their own recognizance. Where a case involves numerous witnesses and/or documents and complex issues, courts will grant continuances to defense counsel where he or she needs time to prepare for trial. As a result a criminal case can go on for months.

Alternatively law enforcement investigators, whether the FBI or local white collar crime investigators, can spend months acquiring documents, go through search warrants and interviewing witnesses who might be perpetrators, offering them immunity before they present a case to the grand jury. Investigations have been known to linger for months and investigation reports have been known to sit on a district attorney's desk for months before any information is filed. In the mean time, a civil case might be proceeding full speed ahead on fast track and you might be called either as a defendant or as a witness to give testimony at a deposition in a civil case and be asked questions that may put you at risk in both the civil case and the criminal case that is looming in that purgatory we all know as The case is currently under review. You should hire a lawyer - and a decision as to whether you are going to invoke The Fifth amendment should be carefully considered before you open your mouth at any civil or parallel proceeding.

There are also significant complexities of the Fifth Amendment that even some lawyers do not understand. One common example is where a witness is testifying at a deposition in a civil case and is asked a question that may require him or her to incriminate themselves. Civil trial lawyers will often insist that The Fifth Amendment only applies to criminal cases. This statement is only partially true. If the testimony could reasonably lead to a criminal prosecution or lead to evidence that could be the basis for a criminal accusation, the person has the right to invoke his or her Fifth Amendment rights. Inexperienced lawyers are often fooled into allowing his or her client into giving testimony that may be damaging simply because they don't understand the right.

There are often many different considerations on taking the Fifth Amendment. Sometimes, a person can testify after given immunity by the government. In other cases, defendants/litigants take a carefully calculated decision to testify. This is because even though juries in California are instructed in criminal cases that they cannot hold a defendant's decision not to testify against him or her and are precluded from guessing as to what a defendant might or might not have testified, there are attorneys who hold no value to such instruction and feel that juries ignore the instructions. Proving that a jury refused to follow the instructions and winning a motion for a new trial is extremely rare. Whatever the situation, it's always better to evaluate the adverse risks before undertaking them then dive headlong into the pond only to find out that its filled with alligators and wish you had thought things out before hand. Once the bell rings, you either fight or throw the towel. Sometimes, the risk of testifying is more appealing and let a jury evaluate a charismatic and likable defendant than taking the risk that the jury will ignore the instruction and judge a defendant negatively because he or she refuses to testify.

Do's and Don’ts

Be quick to recognize potential signs of trouble early in the game. If law enforcement shows up looking for you to ask you some questions and leaves a card; a search warrant is served upon an individual or organization with whom or with which you have been involved: a partner/coworker/business associate has been interviewed by law enforcement about a subject with which you are familiar or you have had dealings. These are all danger signs. Retain counsel as quick as you can so that you can both strategize and establish a plan that will put you ahead of the game.

Remain a firm and insist upon retaining counsel before talking to law enforcement. Investigators are full of tricks to make their job easy or scare you into saying something that will jam you up. When law enforcement says: "Why do you need a lawyer if you have not done anything wrong?" your radar should go on high alert. Simply and politely insist by saying: "Listen, I don't mean to uncooperative, but just to play it safe, I would like to talk to a lawyer first."

Don't Go it alone. The nuances and strategies involving The Fifth Amendment are just too complicated for the untrained. Often, even the most experienced lawyers will need time to ponder and play out various scenarios mentally before settling on a final plan. Taking the time to retain counsel will prevent you from making snap decisions and unrehearsed remarks that you may regret later.