H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado Criminal Law – Pleading The 5th (Fifth) – Understanding Your Right To Remain Silent

Colorado Criminal Law - Pleading The 5th (Fifth) - Understanding Your Right To Remain Silent

Colorado Criminal Law – Pleading The 5th (Fifth) – Understanding Your Right To Remain Silent – “Pleading the Fifth” seems like a line out of an old Jimmy Cagney gangster movie – but in actuality it is – in my opinion – the single most important civil right asserted in the criminal justice system.

The right is simple on its face but much tougher to apply in different contexts:

U. S. Constitution – Fifth Amendment:

“No person shall be compelled in any criminal case to be a witness against himself.”

The right to remain silent under the Fifth Amendment to the United States Constitution provides a blanket shield giving you the right to say nothing that might incriminate you or that may in any way link you to a crime that’s been committed.

Stated another way, this important right means you are free to refuse to answer any questions that might in some way incriminate you or that could lead to evidence that could be used in an investigation of criminal charges. Obviously it would also be a major mistake to volunteer any information that could be used similarly.

The right to remain silent is also commonly referred to the right against self-incrimination.
Pleading “the Fifth,” means the freedom not to condemn yourself with your own words.
This is a right – although it is often referred to as a “privilege.”

The Right to Remain Silent – To Plead “The Fifth”

The right to remain silent – a right we hold sacred as American citizens – is well rooted in our country’s history. The United States Supreme Court paid honor to that right in the earliest decisions issued by the Court (1892):

“It is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to incriminate him or subject him to fines, penalties or forfeitures”

The United States Supreme Court has stated that a claim of protection under the Fifth Amendment must be liberally evaluated, holding:

They made a judgment, and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of forced disclosures by the accused. The privilege against self incrimination serves as a protection to the innocent as well as to the guilty, and we have been admonished that it should be given a liberal application..

The Accused’s Right To Remain Silent – Taking The Fifth Is” Personal”

In every Colorado criminal trial, the accused is advised separately as regards his right to testify or to remain silent (known as a Curtis advisement). Neither the Judge, the jury, the prosecution, nor even the Defendant’s own lawyer can force the Defendant to take the stand in his own trial. Not only is it the Defendant’s decision not to testify – jurors are carefully admonished that they cannot consider the decision not to testify in their deliberations.

On the other hand – if a Defendant chooses to take the stand in his trial, he has thereby “waived” his right against self-incrimination and is required to answer ALL questions like any other witness. Once waived, the right disappears for that trial or hearing.

The Right Of The Witness To Take The Fifth

Witnesses who have been subpoenaed to testify at trial may also “plead the Fifth” and refuse to answer certain questions if they believe the answers might incriminate them. A subpoena cannot deny a witness the right to plead the Fifth.

Here is how the right might be asserted:

“Relying on my rights under the Fifth Amendment to the Colorado and United States Constitution, I respectfully refuse to answer on the ground that the answer may tend to incriminate me.”

(or more simply)

“I refuse to answer on the ground of the Fifth Amendment…”

For The Witness – The Right Must Be Asserted At The End Of Every Question And May Not Be Asserted In Blanket Form

At trial the right to remain silent under the Fifth Amendment must be asserted after each question. A witness, with or without the advice of a lawyer to advise the witness, cannot just issue a “blanket assertion” that the witness claims the Fifth Amendment privilege.

While it may seem that asserting the Fifth after each question places an unfair burden on the Court and – plainly – is irritating to all participants, the “blanket refusal” that is accorded to the accused under the Fifth Amendment is not available to the witness who cannot refuse to answer “non-incriminating” questions. To do otherwise, exposes the witness to criminal contempt of court.

The Impact Of A Grant Of Immunity To The Witness Who Asserts The Fifth

The most powerful weapon in the prosecutor’s arsenal as against the Fifth Amendment right to remain silent – is the power to grant immunity to the witness and thereby compel the desired testimony. A District Attorney has the authority to immunize a witness from prosecution. From the moment a witness is immunized he or she is no longer subject to the danger of incrimination and must answer the questions posed. The right to assert the privilege simply “dissolves.”

The upside of a grant of immunity is that once given – no testimony or other information compelled under the grant of immunity “or any information derived from such testimony” may be used against the witness in any criminal case. The only exceptions to this rule are situations where the witness has committed perjury or where the witness fails or refuse to comply with the orders upon which immunity is granted.

Use or derivative use of immunized testimony means that anything that is produced under a grant if immunity such as leads derived directly from it — can never be used to prosecute that individual. This is a slippery area at best – as prosecutors often argue that the discovery of “independent evidence of crime” may later be used against the immunized individual.

Limits On Taking The Fifth In Colorado Criminal Investigations And Trials

The right against self-incrimination only extends to speech and not to “other information” that might lead to self-incrimination. There are many examples

If you are stopped in your car – you must produce your driver’s license, proof of insurance and registration. If you are placed under arrest you must allow yourself to be fingerprinted, in some cases provide a sample of your DNA, or in a vehicular homicide not refuse to have a sample of your blood taken. The Fifth Amendment guarantees the only the right to remain silent, it does not immunize you from being prosecuted.

How Clear Must The Threat Of Self-Incrimination Before A Judge Must Grant The Right To Remain Silent?

The rule is this – the Fifth Amendment to the Constitution is liberally construed to preserve personal rights and to protect the citizens against self incriminating evidence.

A judge, reviewing a claim of an assertion of the right against self incrimination must be perfectly clear, from a careful consideration of all the circumstances of the case, that the witness is mistaken, and that the answer cannot possibly have a tendency to self incrimination.

The United States Supreme Court in 1951 reiterated that an assertion of the right to remain silent under the Fifth Amendment must be construed liberally in favor of the right it was intended to secure.

The privilege afforded not only extends to answers that would in themselves support a conviction . . .but, likewise embraces those which furnish a link in the chain of evidence needed to prosecute. It need only be evident that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosures could result
What Courts And Tribunals Are Impacted By The Right To Remain Silent?

The right to plead the Fifth applies to either a civil (see below) or criminal proceedings, in any forum, – local, state or federal. The Fifth Amendment may also be asserted in administrative hearings, legislative bodies in hearings and before boards and commissions.

It is important to make clear that the privilege against self incrimination extends not only to every trial, every investigation, every inquiry, and all other proceeding in which a witness may be compelled to testify as to facts that could someday remotely result in the filing of criminal charges.

The test is always the same – does the answer tend to incriminate a person or subject him to forfeiture or punitive damages?

Does The Fifth Amendment Right To Remain Silent Apply To Civil Cases?

In a word – yes. But while the Fifth Amendment may be taken in a civil case it can ONLY be asserted where the answer to a question might tend to subject the person to criminal responsibility. The fact that the matter might be completely civil in it’s nature does not impact the right to assert the constitutional privilege against self incrimination.

BUT if the only possible liability in the matter is solely civil liability the Fifth Amendment is not available and can not be asserted.

Can I Accidentally Lose Or Waive My Right To Remain Silent Under The Fifth Amendment?

Cases interpreting an alleged “waiver” of the Fifth Amendment’s right to remain silent almost uniformly hold that a person cannot “accidentally waive” his or her Fifth Amendment rights. A waiver must be “knowing and intentional.” Courts will exercise ..every reasonable presumption against waiver of fundamental constitutional rights.

If The Statute Of Limitations Has Run On A Criminal Charge – There Is No Right To Assert The Right To Remain Silent

If the statute of limitations on a criminal act has run it’s course and therefore there is no exposure to a criminal prosecution for that act, there exists no right to assert the right to remain silent. Since the answer to the question posed could not possibly incriminate the person targeted by the otherwise incriminating question.

The Role Of Lawyers In Asserting The Fifth On Behalf Of Their Clients

A Colorado criminal defense lawyer who reasonably believes that the assertion of his or her client’s Fifth Amendment right is on solid ground and there is a good faith basis for the assertion should always shield the client from a criminal investigation.

The lawyer’s decision to raise the Fifth on behalf of a client is usually made under the gun – with little or no time to reflect on the decision and without time to conduct a thorough examination of the context of the assertion. Judges understand this problem and will afford lawyers a great deal of leeway to pursue the assertion – thus there is little downside in asserting the claim and then conducting a more thorough examination down the line.

Colorado Criminal Law – Pleading The 5th (Fifth) – Understanding Your Right To Remain Silent

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ABOUT THE AUTHOR: H. Michael Steinberg –
Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Pleading The 5th (Fifth) – Understanding Your Right To Remain Silent.