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The Fifth Amendment right against self-incrimination

Most Washington residents will have seen films or television shows in which criminal suspects assert their constitutional rights by 'taking the Fifth" when questioned by police officers or prosecutors. The Fifth Amendment to the U.S. Constitution, which is part of the Bill of Rights, states that people cannot be compelled to provide testimony against themselves. Criminal suspects can invoke their Fifth Amendment rights at any time, and the protections provided apply while in police custody and in the courtroom.

Like many aspects of the American criminal justice system, the origins of the right against self-incrimination can be found in English common law. The right was granted to British subjects following the English Civil War during a period of legal and parliamentary reform. While the Fifth Amendment prevents prosecutors and judges from compelling a criminal defendant to testify, it does not allow defendants to pick and choose the questions they wish to answer.

When criminal defendants do not waive their Fifth Amendment right by taking the witness stand, judges must order juries to not treat their refusal to testify as an indication of guilt. The Fifth Amendment protection against self-incrimination can also be asserted during civil trials if statements made in court could lead to criminal charges.

Experienced criminal defense attorneys will generally advise their clients to invoke their Fifth Amendment right when taken into custody. At trial, while criminal defendants may be eager to assert their innocence and tell their side of the story, they will likely be unprepared for withering cross-examinations from veteran prosecutors who have argued before juries on many occasions. Testifying in open court can also be an intimidating experience, and juries may be suspicious of defendants who seem nervous or uncomfortable.

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