How do I plead the 5th?

The question - how do I plead the 5th? - is asked frequently, typically by witnesses whom do not want to testify in court. Oftentimes the witnesses are scared of retaliation, fearful of being labeled a "rat" or a "snitch," or reluctant to testify against a friend or family member. Domestic cases, in particular, usually involve familial witnesses.

What is "Pleading the 5th?"

Pleading the 5th means that you, the witness, may decline to answer questions that may tend to incriminate you. The 5th Amendment to the United States Constitution affords all individuals the Privilege Against Self-Incrimination - nor shall [any person] be compelled in any criminal case to be a witness against himself. This means that the prosecutor cannot force you testify if your testimony "could possibly incriminate [you] in criminal proceedings." Commonwealth v. Borans, 388 Mass. 453 (1983) and Lefkowitz v. Turley 414 U.S. 70 (1973).

What is the Scope of the Privilege? What if the Chances Of Incrimination are Remote?

Any answer that "would furnish a link in the chain of evidence needed to prosecute" is privileged. Powers v. Commonwealth, 387 Mass. 563 (1982). This means that you may plead the 5th even if your testimony won't directly incriminate you, but might incriminate you indirectly.

What if the Prosecutor Does Not Intend to Prosecute Me?

The prosecutor's intention to not prosecute you does not matter, you may still invoke your 5th Amendment Privilege Against Self-Incrimination.

What if the Prosecutor Does Not Believe that I Have a 5th? Can They Challenge It?

Yes, they can. The prosecutors may challenge your assertion. To do so, they must convince the Judge to hold an in camera hearing. In camera means that the hearing is completely private - conducted without the prosecutor, the testimony is protected and may not be distributed. The judge will hear from the witness' attorney and make a determination if the privilege is legitimate. Commonwealth v. Martin, 423 Mass. 496 (1996)

What Other Tools does the Prosecutor Have to Compel me to Testify?

The prosecutor may still force you to testify if they can convince a judge to give you Immunity. In Massachusetts only judges from the Supreme Judicial Court, Appeals Court, and Superior Court may grant immunity. Judges from the District Court, Juvenile Court, and Probate/Family Court may not grant immunity.

Immunity means that, despite your incriminating testimony, you may not be prosecuted based on what you say on the stand. In other words, you are shielded from being charged with the crimes you admit.

Obtaining immunity is a tedious process; therefore, prosecutors only pursue it if your testimony is significant enough to justify the aggravation.

Example 1 - Domestic Violence Case: Edward is accused of punching and kicking his girlfriend (Mona). Edward maintains that Mona hit him first. Initially, Mona wants Edward to be prosecuted; she is angry and wishes to testify. After several months she loses interest. Now, she and Edward have mended their relationship. She no longer wishes to testify against him. The prosecutor sends her a summons to appear in court. Having no interest in being a witness, she hires attorney Henry Fasoldt. Mona tells Henry that she did indeed punch Edward in the face. On the day of trial Henry tells the court that Mona "has a 5th." The 5th to which he refers is the Assault and Battery that Mona committed upon Edward. The prosecutor may not call Mona to testify. Without Mona's testimony the case is likely to be dismissed.

It is unlikely that the prosecutor would pursue immunity in this scenario.

Example 2 - Shooting Case: Dennis is accused of shooting another man (Frank) in the leg. The shooting arises out of a drug deal - Frank is selling dope to Dennis. Dennis believes that Frank has just ripped him off. Dennis shoots Frank. Frank, being the only eye-witness, is crucial to the government's case. However, Frank has committed a crime himself - drug dealing. So, before trial, Frank hires attorney Henry Fasoldt to help him invoke his 5th. On the date of trial Frank pleads the fifth. Now, the prosecutor may not force Frank to testify, unless...the prosecutor goes through the procedure to get immunity for Frank.

A prosecutor is more likely to pursue immunity in a case like this.

[See Henry's blog entry about Grand Jury Testimony]

What if I want to testify? Can I still be charged if my testimony incriminates me?

You may testify, as long as one of the parties (Prosecutor or Defense Attorney) elects to call you as a witness, even if your testimony may tend to incriminate you. You do so at your risk, however. Though it rarely happens, the government may use your testimony against you (by charging you with a crime).

Be mindful. As soon as you testify, you waive your right against self-incrimination. In the future you may be compelled to testify again.

What Should I Do if I Receive a Summons, or if the Prosecutor Contacts me?

Call Attorney Henry Fasoldt if you have received a summons to appear, or if the police or prosecutors have contacted you. Henry represents witnesses frequently. (617) 338-0009

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