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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.

Utah Criminal Attorney - Fifth AmendmentIf 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

Utah Criminal Defense LawyerPresenting 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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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

Offices in Salt Lake and Davis Counties
560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

Call now to arrange for a confidential initial consultation with an experienced and effective Utah criminal defense lawyer.

In Salt Lake City, call 801-449-1409.
In Davis County, call 801-923-4345.

Stephen W. Howard, PC

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