Fifth Amendment Right Against Self-Incrimination

If you’re a lawyer or a mystery writer (and I’m both), there’s a singular trope that arises again and again: the client is innocent but wrongly accused, the lawyer has the actual murderer on the witness stand, and the cross-examination is so furious that the witness cracks. It might be written as follows:

“And then you killed her!” the defense lawyer booms.

The witness crumples in her chair. “Yes. Yes. I did it! And I’d do it again too!”

It makes for great theater, of course. But how realistic is it? Not only the fact that most people do not confess to crimes that result in lifetime incarceration so easily, but would a murderer even take the witness stand if he or she could avoid it?

This was an issue I considered in my novel Losing Faith. When I’m writing, I treat the fictional courtroom case the way I handle the cases in my real life law practice. I consider the potential witnesses, and then prepare questions to ask them.

In my fictional case in Losing Faith, the defense was going to adopt a time-tested legal defense strategy – blame a third-party and tell the jury he committed the crime. This third-party was named Nicolai Garkov, and it made sense for the defense to point the accusatory finger at him because he was a well-known criminal who was under indictment for other crimes, and had a motive to commit the murder at the center of Losing Faith.

I was excited to write the trial testimony of Nicolai Garkov. The way I saw it unfolding was that the defense lawyer would go through Garkov’s colorful and varied criminal past, and then at the end scream the: “And then you committed murder!” line. Garkov, of course, wouldn’t crumble; he was too hardened for that, but the jury would still get the point, and perhaps conclude that enough reasonable doubt existed for an acquittal.

One of the things I try to do in my writing, however, is view situations from each character’s perspective, so I’m not considering the world only through my protagonist’s eyes. In this case, I wondered what Nicolai Garkov would do when he got the trial subpoena. As soon as I posed the question, I saw a flaw in my reasoning.

Nicolai Garkov didn’t become a criminal mastermind without being smart. And criminal masterminds like Garkov have a battalion of lawyers at the ready. Accordingly, the first thing Garkov would do upon receiving a trial subpoena would be to consult one of his lawyers. And any criminal lawyer worth his salt would tell Garkov that the last thing someone under indictment for another crime would ever do is testify at someone else’s trial. Instead, they’d advise Garkov to assert his Fifth Amendment right against self-incrimination.

That could still work for my book, I told my writer-self. The courtroom fireworks would be missing, but there still might be an audible gasp from the gallery when the lawyer calls Garkov to the stand and says, “Sir, I have only one question to ask you, but it’s the most important question of this trial. It’s the question that the ladies and gentlemen of this jury have been waiting for you to answer: Did you murder the victim in this case?”

Garkov would respond, with a smirk, because he’s a smirker. Then he’d read a 3 x 5 index card prepared for him by his lawyer because when I’ve advised clients to assert their Fifth Amendment rights in my law practice, I always give them a 3 x 5 card so that they don’t mess up the invocation. “On the advice of my counsel, I decline to answer the question and assert my rights under the Fifth Amendment of the U.S. Constitution not to be compelled to be a witness against myself.”

My fictional defense lawyer could handle it from here. He’d close with a flourish: “Ladies and gentlemen of the jury, you must be filled with reasonable doubt as to the defendant’s guilt. You saw with your own eyes that Nicolai Garkov could not deny that he was the murderer! Not only did he not deny being guilty of the crime for which my client now stands accused, but Mr. Garkov refused to answer the question at all because he feared that his answer would incriminate him. Only one answer would lead to that incrimination: Nicolai Garkov – and not my client – is guilty of this heinous murder.”

But then my lawyer mind reappeared. That didn’t sound right. It would be too easy to put up any straw man to assert the Fifth Amendment right.

So I turned to the legal databases I use in my law practice for the answer. It turns out that my lawyer brain was right and my writer brain was wrong.

Generally speaking, in a criminal trial, a witness who invokes his or her Fifth Amendment right must do so outside the presence of the jury. In addition, the defense is unable to make any reference to the assertion, just as the prosecution is unable to call to the jury’s attention that the defendant failed to take the stand in his own defense. As far as the jury is concerned, it’s like the Fifth Amendment assertion never occurred.

I try to be as scrupulous as possible in getting the law right in my novels. I’ve spent too much time screaming “that would never happen” at Law & Order reruns to be able to live with myself if any of my readers felt that way about my books.

As a result, Nicolai Garkov’s assertion of the Fifth Amendment in Losing Faith was done as the law requires — outside the presence of the jury. My fictional defense lawyer was denied his Perry Mason moment. But the book was accurate, so in that sense, justice was served.

Photo Credit: dnak via / CC BY

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