Fifth Amendment in a Criminal Case

Question: Why is the Fifth Amendment important in a criminal case?

Answer: The Fifth Amendment is a critical constitutional right that applies most directly to the process of a criminal trial. What that means is if a person is on trial or has decided to exercise their constitutional right to trial in a criminal case, they have an absolute Fifth Amendment right not to take the stand and testify on their own behalf. The only way that that can occur is if the defense attorney makes that decision in concert with his or her client. It is always the client’s decision as to whether or not they should take the stand, but that decision should always be made on the advice of counsel.

Most attorneys agree that it is not in the client’s best interest to take the stand at trial. Having said that, every juror in a criminal case will want to hear from the defendant. Because that is understood, it is a difficult decision for the defense attorney to make, and the jury will be advised on numerous occasions by the trial judge that they may conclude nothing from the fact that the defendant has not taken the stand and that they must not consider that fact in determining their verdict.

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