Pleading the 5th – Part II

Staff Attorney
Gasper Law Group, PLLC

The Basics: In the courtroom
We’ll start with the most classic examples, and work our way into some things you may not have thought about. For now, we’ll assume a criminal case has actually been filed by the DA, negotiations have not been fruitful, all pretrial issues have been determined, and now, your trial before a jury has begun. Do you testify in your own defense, or do you invoke your 5th amendment right to remain silent? Each case is different, and your attorney will advise you at every step of the way, but ultimately, you must make that choice. And during your trial, the judge will ask you personally which choice you have made. No one can make you testify if you’d prefer not to. Likewise, no one, not even your own attorney, the judge, or the DA, can prevent you from telling your side of the story to the jury if you really want to (but often, it could wind up being a very bad idea). Critical, tactical and personal issues will influence your decision (a topic for another day), but we’ll decide for this example that you don’t want to testify.

What happens? Remember, since the DA has the burden of proving you guilty, they must present sufficient evidence during the first ‘half’ of the trial to prove you guilty of the charge before your team (you, your attorney(s), and investigator or paralegal, if needed) has to present anything. Once the DA rests their portion of the case (likely consisting of eye witnesses, police officers, exhibits, and possibly expert witnesses), there will be a break in the trial for at least a few minutes. The jury will be excused from the room. Without you having to say a word, your attorney will be given the opportunity to argue before the judge that the DA’s case is legally insufficient to convict on one or more of the charges. Although it rarely occurs, if the judge does agree, you could then be acquitted by the judge on the spot, and the jury would not even get the case. Game over. This might occur if the DA was unable (or forgot, if you get really lucky) to present any credible evidence of an essential element of the charge; for example perhaps the DA showed that you were drunk at the time you were operating a motor vehicle (see CJA’s article), but failed to show it was in a public place. If it occurred on purely private property (and the DA must show that it did not), then you don’t even have to decide whether to testify or not. You go home. (Be careful celebrating your win afterwards!)


In our sample case, you’re not so lucky. The judge agrees that the DA has presented enough evidence to let the jury decide the case. Next, with the jury still on break, the judge will address you directly and give you a Curtis* advisement. Basically, he will make clear whether you intend to testify in your own defense or not, and see if you have any questions about your rights. If you elect not to testify, the jury will get a special oral and written instruction that no one is ever required to testify on their own behalf, and that they should not draw any adverse inferences against you based upon that fact alone. Furthermore, during the entire trial, through closing arguments, the DA is forbidden from even referencing the fact that you declined to testify on your own behalf. If he does so anyway, the court will likely grant you the option of asking for a mistrial, sending the jury home, and giving you a new trial in the future. That is how important your 5th Amendment rights are seen by the courts.

What factors go into deciding whether to testify at your trial? Stay tuned.

*Many important concepts in the law are named after landmark cases involving defendants who are otherwise undistinguished individuals. One example is Mr. Miranda, an otherwise insignificant person who ran afoul of the law in Arizona, but wound up having Miranda rights named after him because the Supreme Court agreed to hear his case. Similarly, Mr. Curtis had his case heard which clarified exactly what a judge must advise an accused during his trial about his 5th amendment rights. Important cases are not named after the attorneys who won them, but rather their clients. However, unless your name is Lou Gehrig, diseases are not named after the patients; rather, they are named after the doctors who first ‘discovered’ them. Go figure.