Pleading the 5th-What You Thought You Knew

Staff Attorney
Gasper Law Group, PLLC

Client: “ I was never read my rights”
Attorney: “And…………?”
“..nor shall (any person)be compelled, in any criminal case, to be a witness against himself;…” Amendment V of the United States Constitution.

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You might think that this simple phrase would have long been settled in its interpretation and application in the criminal courts, Colorado and otherwise. Far from it. Its precise meaning has been a continuing source of scholarly and practical interpretation since its adoption by the original 13 colonies. As statutes change, as technology advances, as societal norms evolve, as police methods change, so must the Courts. All courts must ensure that this vital constitutional right is honored by any arm of government with the power to deprive a person of life, liberty or property. While the procedural interplay between the federal and state systems can become complicated, suffice it to say that the federal courts will impose this right in state court (i.e. Colorado) criminal proceedings.

Part I.

Read carefully the middle phrase. “in any criminal case”. Exactly what is meant by “criminal case”? Is it a trial? If so, does it apply to felonies only? Misdemeanors? Petty offenses, for which the only penalty might be a small fine? How about a parking ticket? Must the person have been formally charged for a “case” to exist? Must there be a judge involved? How about pretrial proceedings, such as motions to suppress evidence unlawfully seized? Post conviction matters, where the client is already placed on probation, or is reporting to a parole officer long after his case is concluded ‘in court’? What about administrative hearings (such as an attempt by the State of Colorado to revoke or suspend your driver’s license)? What if you’ve been subpoenaed to someone else’s criminal case, but could have to testify in a manner that could implicate you in criminal wrongdoing ( “yeah, I helped him break into the car”)? Does it matter whether you were subpoenaed by the DA or your friend’s defense attorney? Take it a step further; what if you’ve been subpoenaed to someone else’s civil deposition, but might have to admit you could not recall clearly the events because you had been smoking pot earlier that day—and you are already on parole? What if you are merely just under investigation, but nothing has been charged or filed in court? Not so simple, is it? We’ll take it slow.

Now, what does it mean to be “compelled”? In a pure court setting, what we’ll assume for our purposes is that a judge would otherwise have the power to order you to testify at a trial or hearing. If you refused, you could be fined, imprisoned, or both, merely based upon your refusal. In a police investigation, defining “compelled” is a lot more dicey, and is quite a bit more context specific. Suffice it to say, being hit by the police with a rubber hose in the interrogation room until you “talk” would qualify as being “compelled”. In our current legal environment, the police are actually far too professional to engage in such tactics. That was not always the case in our country’s history. That does also not mean they would not try, perhaps mightily, to encourage a potential suspect to provide a statement surrounding his involvement in a crime. Pushing the envelope is legal; violating someone’s rights is not. What is “compelled” vs. what is voluntary is not always easy to determine. That’s where an experienced practitioner can help.


Lastly, what is a “witness”? Must you be placed under oath? Must you have been formally subpoenaed, or formally charged? Can it simply be a matter of being asked, however innocently, what happened? Must it be by the police? A Sheriff? A private security officer in uniform? Plainclothes loss prevention personnel who caught someone shoplifting? An employer who suspects you have been taking money from the business? An acquaintance, who might later turn you in if you fess up to him? Over the phone, via email, or live and in person? Context is everything.

And “against” yourself? The easy one is that you could not be forced by the judge at your own murder trial to take the stand and admit the crime. But what if telling the truth, perhaps at someone else’s trial, might make you look bad? What if it could affect your ability to get a job, or maintain custody of your kids? What if it could result in you being placed under investigation for a criminal act for which you were not even a suspect prior to getting the subpoena? Again, we can help. Stay tuned for Part II.