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When Can You Assert the Fifth Amendment?


The fifth amendment is well known to people, and has become somewhat famous by its use in movies, and with certain government officials who seem to assert it quite often. But when can you assert the fifth amendment?

What is the Fifth Amendment?

The fifth amendment is the constitutional right to refuse to say anything, or to be compelled to say anything that would tend to subject you to criminal prosecution later on. Contrary to popular belief, the fifth amendment is not limited to criminal trials or proceedings.

So long as  a question would be likely to incriminate you criminally, you can assert the privilege, even if you are asserting the privilege in a non-criminal proceeding. You can also assert the fifth if you believe that the answer to a question would provide a link to incriminating you, even if the question itself is not directly incriminating.

You do not have to be under arrest, or in custody to assert the fifth amendment. You don’t need to be questioned by law enforcement to be questioned.

As a general rule, you have to assert the privilege on a question-by-question basis, question by question—you can’t assert a blanket privilege to an entire deposition, or to any and all questions.

In court, if you assert the fifth, the jury will hear you assert the privilege, but they will be instructed not to “assume the worst”–that is, they will be prohibited from assuming you did something wrong, just because you asserted the fifth amendment.

Asserting the Privilege in Civil Cases

In civil cases, if you are the party bringing the lawsuit, your case can be dismissed if you assert the privilege. In other words, you can’t bring a lawsuit, and then when you are asked questions about your claim, assert the privilege. That means you should seriously think about what questions you may be asked during the litigation, if you are thinking of suing someone.

Sometimes, it isn’t clear if a question would incriminate someone. In that case, the court can require that you answer a question in private, and the judge will determine whether the question and answer are allowed, or prohibited by, the fifth amendment. The fact that you believe that an answer could incriminate you isn’t determinative—what a court believes is what governs.

However, a court will scrutinize someone much more what they assert the fifth amendment in a civil case, than in a criminal case, where courts will usually allow someone to assert the fifth without questioning why the fifth is being asserted, unless it becomes obvious it is being asserted in bad faith.

A court in a civil case can also stay (pause) the case, if a criminal case is also pending. Depending on the outcome of the criminal case, the court can then resume the civil case, with the issues of being incriminated now having been resolved by the conclusion of the criminal case.

Contact the Miami criminal attorneys at Velasquez & Associates P.A. today for help if you have been arrested or if you have any kind of criminal law concern.

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