Reply #18: To be more technical ..... [View All]

[rrrevolution]

It makes a difference what the venue is when you decide to invoke the 5th Amendment Privilege Against Self-Incrimination.

If testifying as a witness before Congress or before a regulatory agency or in a deposition, you can answer some questions and invoke the 5th Amendment Privilege as to others. It is your decision.

In a courtroom setting, civil and criminal, you do not have that option after identifying yourself by name and address. (Some jurisdictions do not require you to answer the address question because it could incriminate you).

However, once called to the stand and sworn or affirmed, you must choose whether you will answer all questions or not -- you cannot pick and choose the questions you decide you will answer. If you try and do that the party calling you to testify may move for an order from the judge that your testimony be stricken from the record and the jury instructed to disregard everything to which you have testified in their deliberations.

The bottom line is that when you are a charged defendant, or an unindicted co-conspirator, or just a witness, you cannot invoke the 5th Amendment Privilige against self-incrimination without indirectly acknowledging that you have violated the law prior to invoking the privilege.

As a practical matter, the lawyer representing the person may not invoke the 5th Amendment Privilege on behalf of his client, the client must do so personally. However, once invoked the lawyer may detail for the court on the record outside the hearing of the jury the facts that support the client invoking the privilege, but the lawyer may not reveal any specifics which would incriminate his client or disclose any attorney/client confidential information.

This may seem strange to the layman, but all lawyers are officers of the court, and the court gives great deference to a lawyer's representation that there is a good faith basis for invoking the privilege, without the specifics being revealed to the judge.