Burglary, Arson, Home Invasion 5th amendment

[lucymartinez314]

My son was involved in a burglary crime with another person. The stolen items were all found in my garage. The other person is taking his case to trial and I have been subpoena to court to testify. Can I plead the 5th if my testimony can incriminate my son? ~thank you.

 

[mightymoose]

You will want to speak with an attorney you trust about how best to proceed.
The 5th Amendment protection is regarding your right to not incriminate yourself. You could be asked questions about your son and be expected to answer truthfully.
You say the friend is going to trial... What about your son? Did he accept a plea offer? If your sons situation is already worked out then your testimony in the friend's case might not harm your son.

 

[Michael Wechsler]

No - you cannot plead the Fifth. The "Fifth Amendment" to the Constitution provides a person with the ability to remain silent instead of being required to testify against themselves for a crime that they are charged with violating. For example, if you were charged with burglary and the items were found in your garage. The prosecutor could not prosecute you as a criminal defendant and require you to testify against yourself at your own trial in order to incriminate yourself for burglary. Your son's criminal attorney or the public defender will not be surprised that you are called to court to testify about what you know concerning how the items ended up in your garage and verifying the fact that they were there (and not planted by anyone else, etc.) In general, unless there is a privilege you can assert, you may be compelled to testify or face contempt of court charges. Privileges include the husband-wife privilege - which applies to a limited set of communications - the same with priest - penitent and attorney - client.

 

[army judge]

My son was involved in a burglary crime with another person. The stolen items were all found in my garage. The other person is taking his case to trial and I have been subpoena to court to testify. Can I plead the 5th if my testimony can incriminate my son? ~thank you.

No one can prove what you know, or when you may have learned it.
If your son had access to your garage, that wouldn't mean you knew what he placed in your garage.
It isn't uncommon for a parent to allow a chid to have access to their property, or to store things in, or around their home.
Heck, I still have items belonging to my children.
Most of it they put in sealed boxes.
I have several storage buildings in my ranch and properties.
If something were to be found in those buildings that is considered contraband, I wouldn't know who put it there, or when.
I would only know that I didn't put it there, because I own nothing illegal, stolen, or any contraband.
So, you simply testify to what you know.
You don't necessarily KNOW your son placed a specific thing or things in your garage.
Just tell the truth.
It won't or doesn't necessarily need to implicate your son.

 

[Michael Wechsler]

Yes. You can plead the 5th . However, doing so would suggest you had something to do with the burglary. The subpoena means you have to testify as a witness. They cant subpoena the defendants to testify.
I think the judge could cite you for contempt if you tried to plead the 5th when you had nothing to do with it in order to cover up for your son.

I think I understand what you're trying to say - but you cannot use the 5th Amendment for a plea if you don't qualify.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The only way within which the witness can plead the fifth is if doing so would result in the admission of guilt or incrimination of the witness. And if the prosecutor grants the witness immunity, then that issue becomes moot. In this instance, it seems that the witness wasn't involved in the crime, associated with assisting in the commission or furtherance of the crime. One way or the other, it's more than likely that the mother will not have the Fifth Amendment available to use as a plea to avoid the subpoena.

 

[snortle]

I think I understand what you're trying to say - but you cannot use the 5th Amendment for a plea if you don't qualify.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The only way within which the witness can plead the fifth is if doing so would result in the admission of guilt or incrimination of the witness. And if the prosecutor grants the witness immunity, then that issue becomes moot. In this instance, it seems that the witness wasn't involved in the crime, associated with assisting in the commission or furtherance of the crime. One way or the other, it's more than likely that the mother will not have the Fifth Amendment available to use as a plea to avoid the subpoena.

Tell that to Lois Lerner. (lol)

No i hear you. I specifically had Lerner in mind when i said she could plead the 5th but it would point the investigation at her. You do raise a valid point of law however.

When someone is under subpoena as a witness, but all of a sudden they plead the 5th to a question, does the judge intervene ? In my opinion all it does is point the investigation at that witness as a possible defendant . What if its discovered the 5th was to shield the defendant(s) instead, does she get slapped with a penalty?

I am sure there is case law we can dig up on it.