Invocation of Fifth
Amendment by Witness
The invocation of
Fifth Amendment privileges by a witness at trial
presents interesting legal issues. Depending on the circumstnaces, it
can create potential problems and possible advantages to either the
defense or the prosecution. But a prosecutor or defense attorney should
not call a witness specifically for the purpose of having that witness
invoke the Fifth Amendment in front of the jury.
If you are facing prosecution for criminal charges or have been
identified as a potential witness in a criminal case, it is vital to
understand your rights. Obtaining the assistance of an experienced
criminal attorney can be the best way of ensuring that your rights are
protected.
Contact us today to arrange for an initial confidential consultation
with Utah criminal defense lawyer Stephen Howard.
Is it improper for a prosecuting attorney to call a witness
when it
is known that the witness will invoke the Fifth Amendment privilege?
Prosecutorial
misconduct may occur when a prosecutor calls to the attention of a jury
matters or information that they jury would not be justified in
considering in reaching a verdict. It is not proper for a jury to
consider a valid invocation of a Fifth Amendment privilege as they
determine their verdict. Utah appellate courts have held that the
exercise of a Fifth Amendment privilege by a witness is not evidence
which can be used by either party - defense or prosecution.

If
a prosecutor chooses to call a witness who is known to intend to refuse
to testify, the prosecutor engages in misconduct if the purpose of that
choice is to attempt to impress upon the jury the witness's silence or
invocation of the privilege. However, there are cirucmstances where a
prosecutor may not commit misconduct by calling a witness who has made
known his or her intent to remain silent or invoke a privilege.
There
are some legitimate reasons that can support a prosecutor's decision to
call a witness who has indicated an intent to remain silent and refuse
to testify. In some cases, a prosecutor may need to call such a witness
in order to demonstrate that the witness is "unavailable" for purposes
of a hearsay exception. Courts have also recognized that a witness may
sometimes change his or her mind when actually called to testify, and
that it may, under some circumstances, be proper to call such a witness
in order to give the witness an opportunity to answer particular
questions.
It must be noted here that the prohibition on a
jury considering a witness's choice to invoke a Fifth Amendment
privilege is limited to "valid" invocations of that privilege. A person
who has been granted use immunity or has otherwise waived their Fifth
Amendment rights may be determined to not have a valid Fifth Amendment
claim. Under such circumstances, a witness may be ordered by a court to
answer a prosecutor's questions, and may be held in contempt by the
court for a failure to comply with such an order. Further, a jury may
be permitted to consider the witness's refusal to testify as it
considers the credibility of or weight to be given to that witness,
when the witness is found not to have a valid claim to a Fifth
Amendment privilege.
Where a witness does not have a valid claim of privilege privilege,
courts have held that a witness cannot employ a claim of privilege just
"to avoid giving testimony that he simply would prefer not to give." In
circumstances where a witness does not have a valid privilege, a court
may order the witness to testify. Failure to follow such an order can
subject a witness to a contempt finding by the court. Courts have
therefore held that a prosecutor does not necessarily have to accept at
face value every asserted claim of privilege. A prosecutor may be
permitted to call a witness when the prosecutor reasonably believes
that the possibilty of being held in contempt by the court may persuade
the witness to testify. But prosecutors should use caution when it is
known that the witness will claim privilege. Using a witness where the
defendant may be prejudiced by the witness's claim of privilege may,
depending on the specific circumstances of the case, serve as the basis
for a claim of prosecutorial misconduct, a motion for mistrial, or
reversal on appeal.
Choosing a Utah Criminal Defense Attorney in Salt Lake City

Presenting
a successful defense at trial requires a thorough understanding of
Utah's rules of evidence and criminal procedure, as well as the
substantive statutory and case law affecting the case. Stephen Howard
is an
experienced criminal defense attorney, serving clients throughout
Utah. If you are facing criminal prosecution,
contact us today to
arrange for an initial consultation.
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