The Fifth Amendment of the U.S. Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself (emphasis added) nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the Magna Carta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: 1) grand juries for capital crimes; 2) a prohibition on double jeopardy; 3) a prohibition against required self-incrimination; 4) a guarantee that all criminal defendants will have a fair trial; 5) and a promise that the government will not seize private property without paying market value. While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment’s provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment.
Self-Incrimination
The Fifth Amendment protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may “plead the Fifth” and not answer if the witness believes answering the question may be self-incriminatory.
“Pleading the Fifth” typically occurs in family law cases when there is evidence of illegal activity by one of the spouses. According to North Carolina criminal law, adultery is a criminal offense. Because the act of adultery is technically a crime, a spouse or paramour who has committed adultery can refuse to testify about the adulterous behavior based upon his or her Fifth Amendment right, because he or she could technically be subjecting himself or herself to criminal prosecution. Though I know of no prosecutorial district in North Carolina that enforces the adultery statute, it is still valid law and accordingly allows the person(s) to plead the Fifth. Another instance where a spouse may plead the Fifth in a family law case is when there are allegations of illegal drug use. Obviously, the State and/or Federal government could use any admission of illegal drug activity in the indictment and prosecution of such drug offenses. Domestic violence/physical abuse is another potential criminal offense that frequently arises in family law cases. Parties can face criminal and civil liability for abusive conduct and have the right to plead the Fifth Amendment regarding such conduct. Finally, a party may sometimes play private investigator and tape record telephone conversations involving his/her spouse. Clients should proceed with extreme caution before recording any telephone conversations and consult with an attorney about potential civil and criminal liability associated with such recordings. A client may have Fifth Amendment protection associated with potential criminal charges associated with such recordings.
Pleading the Fifth Amendment in a civil domestic, however, can have a dramatic effect on the client’s civil domestic case. Asserting the Fifth Amendment privilege protects the person from self-incrimination in the criminal process. However, North Carolina courts have held that the Fifth Amendment “is intended to be shield and not a sword.” Thus, if a person pleads the Fifth Amendment in a civil domestic action, the trier of fact (judge or jury, depending on the issues involved), is allowed to infer that the answer to the question would have been negative to the person’s interest. If the privileged information sought from the client is material and essential to the defense of the client’s claim, the client must decide whether to come forward with the privileged information or whether to assert the privilege and forego the claim in which such information is necessary. Therefore, a lawyer should consider carefully when a client should plead the Fifth Amendment, weighing the likelihood that the client will actually face criminal prosecution versus the potential impact on the client’s civil domestic action.
Contributor: Stephanie T. Jenkins. Stephanie Jenkins is a Raleigh, North Carolina Family Law Attorney and a Partner in the Family Law Firm of Gailor, Wallis & Hunt, PLLC. She is a former Wake County, North Carolina Assistant District Attorney. Stephanie has been practicing family law and criminal law for over 15 years in Raleigh, North Carolina.
For more information contact: Gailor, Wallis & Hunt, PLLC at 1101 Haynes Street, Suite 201, Raleigh, NC 27604, Tel: 919-832-8488 or go to www.gailorwallishunt.com.
Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case.
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