Your 5th Amendment Rights When Subpoenaed in a Criminal Case

Your 5th Amendment Rights When Subpoenaed in a Criminal Case

Being subpoenaed to provide testimony or documents in a criminal case can be scary; but the Fifth Amendment to the Constitution provides important protections for witnesses and defendants alike. This article will explain, in simple terms, what your Fifth Amendment rights are if you find yourself subpoenaed in a criminal case.

What is the Fifth Amendment?

The Fifth Amendment is part of the Bill of Rights, the first ten amendments to the Constitution. It states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The key part for our purposes is this: “nor shall be compelled in any criminal case to be a witness against himself.” This means you can’t be forced to provide testimony or evidence that could implicate you in a crime.

When Can You “Plead the Fifth”?

You can invoke your Fifth Amendment right against self-incrimination any time the government tries to compel you to provide potentially incriminating testimony or evidence. Some common situations include:

• Being questioned by police or investigators
• Testifying before a grand jury
• Answering questions at trial (for defendants)
• Responding to a subpoena for documents

In all these cases, you can “plead the Fifth” – meaning refuse to provide the requested testimony or evidence on Fifth Amendment grounds. Your silence or refusal to comply cannot legally be used against you in determining your guilt [2].

What Type of Testimony is Protected?

Only testimonial evidence is protected by the Fifth Amendment. This includes:

• Oral or written statements
• Answers to questions
• Production of documents (in some cases)

Non-testimonial physical evidence like blood or DNA samples, fingerprints, voice exemplars, or handwriting samples is not protected [5].

Responding to a Subpoena for Documents

What if you’re subpoenaed not to testify, but to provide potentially incriminating documents? Fortunately, the Fifth Amendment still provides some protection in this situation.

The act of producing documents in response to a subpoena can communicate incriminating facts, like the existence of the documents, your possession or control of them, or your belief that they are authentic. Under the “act of production privilege,” you can refuse to produce subpoenaed documents if the act of production itself could provide incriminating evidence against you [1].

That said, you can’t just ignore the subpoena. You’ll have to notify the prosecutor that you are invoking your Fifth Amendment privilege and refuse to produce the documents on that basis. An experienced criminal defense attorney can help ensure you properly assert your rights.

Can They Force You to Talk?

What if you invoke your Fifth Amendment rights, but the prosecutor really wants your testimony? They do have some options to compel you to talk:

• Granting Immunity: Prosecutors can grant you “immunity” from prosecution based on your testimony. This means they promise not to use your statements or the documents you produce against you [1].
• Contempt of Court: If you refuse to comply with a court order to testify or produce documents, you could potentially be jailed for contempt of court until you comply.

However, there are limitations on both these tactics, and a lawyer can help ensure the prosecutor doesn’t overstep.

When Can You Be Compelled to Testify?

There are certain situations where you may be compelled to testify even if you invoke your Fifth Amendment rights:

• If you’ve been granted immunity from prosecution
• In civil cases (but your testimony can’t be used against you in a criminal case)
• Before a grand jury (but a defense lawyer can try to convince the prosecutor not to force you to testify if it will incriminate you)
• If the court overrules your Fifth Amendment claim

An experienced criminal defense lawyer can argue against being compelled to testify and guide you through the process if you are forced to take the stand against your will.

Does It Matter if You’ve Been Charged With a Crime?

Your Fifth Amendment rights can be invoked regardless of whether you’ve been formally charged with a crime. The privilege protects anyone who could face criminal prosecution based on their testimony.

However, there are some differences in how the right against self-incrimination works for defendants versus witnesses:

• Defendants can refuse to take the stand at all during their criminal trial.
• Witnesses can selectively invoke the Fifth for specific questions, without waiving their overall right.
• Prosecutors can sometimes compel witnesses to testify if granted immunity, but can’t force defendants to take the stand.

When Does the Right Apply?

Your Fifth Amendment right against self-incrimination only applies when the government is compelling you to provide evidence that could expose you to criminal prosecution. It does not apply:

• In civil cases (although your testimony can’t be used against you in a criminal case)
• In non-governmental proceedings like private arbitration
• To voluntary statements you make without being compelled to testify

So you can’t “plead the Fifth” to get out of testifying in situations that won’t expose you to criminal liability.

How to Invoke Your Fifth Amendment Rights

If questioned by police or investigators, you can invoke your right to silence at any time by clearly stating you wish to remain silent and will not answer any questions without a lawyer present. It’s best not to say anything at all besides asserting your Fifth Amendment right.

If you’ve been subpoenaed, notify the prosecutor in writing that you are invoking your Fifth Amendment privilege and will not be providing the requested testimony or documents. Be sure to assert your rights properly, or you could be compelled to cooperate anyway.

Having an experienced criminal defense lawyer can help ensure you properly assert your Fifth Amendment rights and don’t accidentally waive them when testifying or responding to a subpoena.

The Bottom Line

Being subpoenaed in a criminal case can be intimidating; but don’t panic. The Fifth Amendment provides important protections for witnesses and defendants alike against being compelled to provide incriminating evidence. With the help of a skilled criminal defense attorney, you can effectively assert your right against self-incrimination. While prosecutors have tools to try to compel testimony, an experienced lawyer can push back against overreach and guide you through the process.

The key is not to waive your Fifth Amendment rights accidentally by answering some questions but not others. So if subpoenaed in a criminal case, don’t try to navigate it alone. Get advice from a lawyer experienced in Fifth Amendment protections to ensure your rights are protected.

References

[1] https://www.burnhamgorokhov.com/criminal-defense-resources/fifth-amendment
[2] https://www.justcriminallaw.com/criminal-charges-questions/2021/11/11/what-is-pleading-the-fifth-and-when-to-use-it/
[3] https://www.findlaw.com/criminal/criminal-rights/fifth-amendment-right-against-self-incrimination.html
[4] https://law.stackexchange.com/questions/21383/whats-the-point-of-a-subpoena-if-you-can-just-invoke-the-fifth-amendment
[5] https://www.law.cornell.edu/wex/self-incrimination
[6] https://casetext.com/analysis/fifth-amendment