What Is the Fifth Amendment and When Does It Apply?

 Posted on August 18, 2022 in Criminal Defense

There has been much in the news over the past week or so regarding the Fifth Amendment. According to a statement released from the New York Attorney General’s Office, former President Donald Trump invoked the Fifth Amendment to more than 400 questions during a deposition earlier this month. The AG’s office is conducting a civil investigation into the former president’s business dealings. This has led many people to wonder when a person can invoke the Fifth and what exactly it means to do so.

What Is the Fifth Amendment?

The Fifth Amendment of the United States Constitution, added in 1791, creates certain individual rights for both criminal and civil legal proceedings. Under the law, an individual only has to answer for their crimes when “on presentment or indictment of a Grand Jury.” In these situations, the Fifth can be invoked if one or more of the following circumstances exist:

• If they are being compelled to answer under a subpoena or other legal process

• The communication is taking place during a “testimony” situation

• The testimony would be self-incriminating

There are circumstances in which a person cannot invoke the Fifth, such as cases involving active military servicemembers and/or cases being tried in military courts.

A person who has been granted immunity cannot refuse to answer questions under the Fifth Amendment since law enforcement cannot use these statements in any kind of criminal prosecution. This also includes any evidence that law enforcement may obtain because of these statements.

Additionally, an individual who has been convicted and sentenced for a crime or a person who has been granted a pardon cannot take the Fifth and refuse to answer questions.

Civil vs. Criminal Cases

Some people may wonder why a person would invoke their Fifth Amendment right not to answer questions in a civil case. One of the major reasons why this is usually done is because any evidence that is gathered in a civil case could potentially be used against an individual if a prosecutor thinks the evidence shows criminal acts have been committed.

Contact a Stamford, CT Defense Lawyer

If you are being investigated for a crime, do not wait until you have been charged to contact an attorney for legal assistance. Call Law Offices of Daniel P. Weiner at 203-348-5846 to schedule a free and confidential consultation with a seasoned Fairfield County criminal defense attorney and find out what steps can be taken to help defend against these potential charges.

Sources:

https://constitution.congress.gov/constitution/amendment-5/

https://www.washingtonpost.com/national-security/2022/08/10/trump-deposition-letitia-james/