Pleading the Fifth: How the Tactic is Often Used against Defendants

We have all seen the movies where the defendant gets on the stand and asserts their Fifth Amendment right against self incrimination. Often, this tactic is wisely employed by the defendant’s attorney so as to avoid loose and complex examination by the prosecutor that could be used elicit incriminating statements. However, prosecutors recently have tried to use this tactic against the defendant.

Prosecutors are attorneys too; they know the law and they know how to use it for their advantage. The Fifth Amendment is not only available to defendants, it is also available to witnesses. Thus, the prosecution can call witnesses who can then “plead the Fifth.”

At first glance, there seems to be nothing wrong with this approach—if the witness doesn’t testify, then they cannot possibly incriminate the defendant, right? Not exactly. Prosecutors will try to introduce the defendant’s statement another way by reading previous testimony or a statement that was previously given to the police. The judge will often admit these previous statements even though the witness has not testified and was not subject to cross examination by the defense attorney.

After a conviction and on appeal, most of the convictions are overturned. The reasoning is that the defendant has not had a chance to confront the witness (a right provided under the Sixth Amendment) because there was no opportunity to question the witness.

It is not necessary to wait for a conviction and a subsequent appeal to ensure that your rights are not violated. The experienced trial attorneys at Wallin & Klarich have over 40 years of trial experience and are well versed in the rules of evidence. It is this set of rules that can be used to attack the prosecution’s attempt to admit the out of court statements made by a witness who pleads the Fifth. Wallin & Klarich trial attorneys aggressively represent their clients and make every effort to provide the best possible defense. Our Southern California criminal defense attorneys can be reached by phone at 1-888-749-0034.