The Fifth Amendment

Your Sacramento criminal defense attorney will tell you that according to the Fifth Amendment, “no person … shall be compelled in any criminal case to be a witness against himself.” A “criminal case” may include pre-trial hearings, grand jury hearings, preliminary hearings, trial and any subsequent sentencing.

Using the Fifth Amendment privilege has application to a broad array of circumstances. It encompasses not only answers that could, by themselves, sustain a conviction, but also answers that may support the evidence necessary to prosecute. It is appropriate to invoke this right when the question asked implies that either a response to the question, or a justification as to why it cannot be answered, could prove detrimental due to the resulting injurious disclosure.

Therefore, your Sacramento criminal defense attorney will inform you that you have a choice: Refuse to answer the prosecution’s questions based on the possibility that the answer may incriminate you, or answer the questions and possibly add to the inferences that may result in a conviction. Even if you are innocent of the charges against you, the right to refuse to answer is still available if you have reason to fear prosecution.

Drawing adverse inferences from the privilege of exercising your Fifth Amendment rights is not allowed since that would penalize its use. Therefore, a jury is instructed by the court to not draw any type of adverse inference from the defendant’s refusal to testify, and the prosecution is not allowed to draw attention to the defendant’s choice.

If you are facing a criminal charge and would like to speak to an experienced Sacramento criminal defense attorney, please call Param Pabla at (916) 285-7900.