The most common use of the Fifth Amendment in criminal cases is the defendant’s “right to remain silent.” The U.S. Constitution states that no person “… shall be compelled in any criminal case to be a witness against himself…”
Can You Be Punished for “Taking the Fifth”?
This right to be silent is intertwined with the defendant’s Constituional Right to the presumption of innocence. Since a person is presumed innocent, and since a person has the right to remain silent, a Judge or Jury cannot infer your guilt because you decided not to testify. If you are accused of a crime, you are not obligated to present any evidence in your defense. Of course, it may benefit you to do so, depending on the circumstances of the case. But at no point can a judge or jury demand that you “prove” you did not commit a crime. Aside from the fact it is difficult to prove a negative, it violates the plain language of the law, which presumes the defendant’s innocence.
Jury Instruction and the Fifth Amendment
Just because the Constitution says that the Judge or Jury cannot infer a person is guilty because he did not testify, does not mean that jurors don’t secretly think that. Thus, a trial court judge has a legal responsibility to make sure that all jurors understand and apply the presumption of innocence. State court rules explicitly state that a judge must ask potential jurors if they “understand and accept” the presumption of innocence and agree not to hold a defendant’s refusal to testify against him.
In addition to a Judge giving this instruction during a trial, during the jury selection for a criminal trial, also referred to as voir dire, defense attorneys usually ask potential jurors if they understand and accept the presumption of innocence and the defendant’s right to not testify.
Get Help from a Criminal Defense Attorney
The presumption of innocence is not a legal technicality. It is an essential right to due process under law. A qualified criminal defense lawyer Fairfax, VA residents need who can help make sure the court and the prosecutor respect your basic constitutional rights and that the burden of proof at trial is on the prosecutor to prove beyond a reasonable doubt that you are guilty of the crime. The burden is not on you to prove that you are innocent of the crime and you do not have to testify.
Contact a criminal defense attorney today if you have been charged with a crime and need immediate legal assistance.
Thanks to our friends and contributors from Dave Albo Attorney for their insight into criminal defense.