Dougherty Tobias Iszard, Northern Virginia Law, P.C.

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Fifth Amendment protects against self-incrimination

In all criminal cases in Virginia and across the country, defendants have a right against self-incrimination under the Fifth Amendment of the U.S. Constitution. The Fifth Amendment sets forth that the defendant in a criminal trial cannot be forced to testify. The origins of the right are rooted in a refusal by the Puritans to cooperate with English interrogators in the 1600s. Puritans who fled persecution based on religion brought the idea of a protection against self-incrimination along to America.

A defendant in a criminal trial in Virginia can choose whether or not to testify. If they choose to testify, they have to answer all questions posed to them and cannot answer some and refuse to answer others. When a person pleads the Fifth, the decision maker for the trial is not allowed to consider his or her refusal to testify as evidence of guilt or innocence. Witnesses other than the defendant in a criminal proceeding can also take the Fifth if their testimony might result in criminal charges against them.

The right against self-incrimination may also apply in civil trials if the particular testimony could bring on criminal charges. In a civil trial, though, the decision maker is allowed to make inferences about the defendant's guilt based on his or her refusal to testify. It is common for defendants in civil cases, therefore, to say they don't remember particular facts or an answer instead of relying on Fifth Amendment protections.

In a case where a person is charged with a crime in Virginia, an attorney who has experience in criminal defense law may help by advising the client about his or her rights under the Fifth Amendment and other laws and regulations. An attorney might be able to challenge the admissibility of prosecution evidence or negotiate a plea bargain with the other side.

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