Question about pleading the 5th

[LostManAbroad]

Jurisdiction

US Federal Law

Firstly, I am not a lawyer and don't have a legal problem. I love watching the legal drama Suits and while watching it I often google terms that they use so that I can better understand what I am watching, i.e. I've looked up things like the meaning of the word fiduciary, what a TRO is, things like that.

One thing that you see a lot in the show is someone pleading the 5th in a criminal case but that got me to wondering about the point of pleading the 5th. If a prosecutor asks a witness if he was aware of criminal activity that was taking place, isn't pleading the fifth the same as saying yes? Surely, if a witness didn't know about criminal activity then they would just say no.

I suppose what I am really asking is, is there ever a situation in which pleading the fifth doesn't immediately highlight guilt in the witness? And if not then what is the point of it? Is it simply so that criminal proceedings are not then aimed at the witness?

 

[adjusterjack]

These videos may answer your questions.

DON'T TALK TO POLICE - Professor James Duane - YouTube

"You Have the Right to Remain Innocent" (James Duane) - YouTube

 

[cbg]

It's the same as when you plead not guilty. As it was once explained to me, pleading Not Guilty (or, pleading the 5th) is not saying I didn't do it; it's saying, I am standing on my right under the Constitution to have the prosecution prove me guilty.

 

[Tax Counsel]

If a prosecutor asks a witness if he was aware of criminal activity that was taking place, isn't pleading the fifth the same as saying yes?

No, it is not the same thing. Juries are instructed not to infer anything from a 5th amendment privilege claim.

Surely, if a witness didn't know about criminal activity then they would just say no.

Not necessarily. There might be other reasons why an answer either way might be detrimental to the witness.

I suppose what I am really asking is, is there ever a situation in which pleading the fifth doesn't immediately highlight guilt in the witness? And if not then what is the point of it? Is it simply so that criminal proceedings are not then aimed at the witness?

As I said before, juries are instructed not to infer anything from a witness invoking their 5th Amendment privilege. And even if the jury does infer something from it, it won't expose to the witness to the kind of trouble he or she would have should they admit to some kind of connection to criminal activity on the witness stand.

 

[flyingron]

Pleading the fifth is not to imply that you are guilty (despite what certain politicians say). In fact, with a jury, the judge will often make that specific call out to the jury when someone pleads to fifth or the defendant declines to testify.

Note that this only applies to CRIMINAL actions. Failing to testify or provide answers very much can be taken in context for CIVIL actions.

 

[Tax Counsel]

Note that this only applies to CRIMINAL actions. Failing to testify or provide answers very much can be taken in context for CIVIL actions.

A witness certainly may invoke the Fifth Amendment privilege when testifying in a civil case if requirements of the privilege are met: mainly that it may amount to testifying about a crime in which the witness participated. The jury will often be instructed that it may make whatever inferences it can logically make from that answer. That is, the jury is free to conclude the answer would not have been favorable to the witness.

In a criminal trial the defendant may choose not to testify at all — and that's the choice most make. The defendant cannot be forced to testify in a criminal proceeding against him. But if he does, he then has to answer all the questions to put him except where some privilege other than the 5th Amendment would apply. The reasoning is that the defendant cannot pick and choose to answer only the questions that help him. If he testifies, he opens the door for the introduction of other evidence, too, that might otherwise have excluded had he not testified. That's one of several reasons why criminal defense attorneys will not, in most cases, put their client up on the state. While a criminal defendant does not have testify, the jury may conclude that for other witnesses, the invocation of the 5th Amendment suggests the answer would be negative to the witness.

In short, the criminal defendant gets the benefit of invoking the 5th Amendment and getting the instruction that his failure to answer cannot be used against him. For any other witness, the witness in a criminal case and a civil case are treated much the same.

 

[zddoodah]

the point of pleading the 5th.

I'm wondering if you're very young and/or not in the U.S. "The 5th" refers to the 5th Amendment to the U.S. Constitution. The 5th Amendment provides, among other things, that: "No person . . . shall be compelled in any criminal case to be a witness against himself." Modern interpretation says that, any person is free, in the course of the criminal process (starting from investigation all the way through trial) to remain silent. Thus, "the point of pleading the 5th" is to avoid saying something that may lead to self-incrimination.

If a prosecutor asks a witness if he was aware of criminal activity that was taking place, isn't pleading the fifth the same as saying yes?

No. For starters, why would anyone ever ask the question, "are you aware of criminal activity that was taking place?" Pretrial interrogation in connection with criminal investigation and prosecution is not simply a series of yes/no questions. Additionally, at trial, the prosecutor cannot call the defendant as a witness in a criminal trial. The only time a prosecutor can examine the defendant is if, as part of the defense case at trial, the defendant chooses to testify, and that choice effects a waiver of the defendant's 5th Amendment privilege. And, as noted previously, a defendant's election to respond to a question by taking the 5th is not something that can be mentioned at trial. A prosecutor who mentions at trial, "we interrogated the defendant and asked him this question, and he pleaded the 5th, so he's obviously guilty," would guarantee a mistrial and probably get fired.

I suppose what I am really asking is, is there ever a situation in which pleading the fifth doesn't immediately highlight guilt in the witness? And if not then what is the point of it? Is it simply so that criminal proceedings are not then aimed at the witness?

As noted, this isn't an issue at trial. At trial, everyone on the prosecution side believes the defendant to be guilty. In the course of investigation, yeah, pleading the 5th may support the likely already exiting belief that the person is guilty, but so what?