Colorado Criminal Defense Law – The Right to Refuse to Testify Based on the 5th Amendment’s Right to not Incriminate Oneself

by H. Michael Steinberg Denver Colorado Criminal Defense Trial Lawyer

The tension between the right to call a witness to present a defense at trial – and the witness’s right to NOT self incriminate himself or herself is ever present in criminal cases.

The right of a defendant to assert a defense vs the right of a witness to not incriminate themselves by testifying at trial.

On the one hand, “[t]he Fifth Amendment of the United States Constitution . . . can be invoked by anyone whose statements or answers might incriminate that person.”

On the other hand, “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense.”

The right to present a defense is not considered absolute, however, and it “does not include the right to compel a witness to waive his or her Fifth Amendment privilege.”

Instead, “when a defendant’s rights under the Sixth Amendment (the right to a fair trial) collide with a witness’s Fifth Amendment rights (the right to remain silent), the defendant’s right to compulsory process must give way to the witness’s privilege not to give self-incriminating testimony.”

The 5^th Amendment’s Right Against Self Incrimination

The Fifth Amendment provides a witness with a privilege to decline to answer questions if the answers would incriminate him or her.

The privilege against self-incrimination may not be asserted in advance of questions actually asked of them – it is an option of refusal to respond and not a prohibition of inquiry.

The proper procedure is to wait until a question is asked which tends to be incriminating has been asked and then decline to answer the question.

There are limits on this privilege, and it is for the judge, and not the witness, to determine whether a witness’s refusal to testify is justified under the Fifth Amendment. When the judge makes this determination, the judge is required to give the Fifth Amendment protection “liberal construction in favor of the right it was intended to secure.”

This means that the protections of the Fifth Amendment can be invoked by anyone whose statements or answers to questions could incriminate him, either by directly admitting the commission of illegal acts, or by relating information which would “furnish a link in the chain of evidence needed to prosecute the claimant” for such acts.

A judge may deny a witness’s claim of privilege only if it is absolutely clear that the witness is mistaken and the testimony cannot possibly incriminate him.

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