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Denver Defense Attorney: Witnesses Taking the 5th in Colorado Criminal Courts

When a defendant is charged with a crime, the defendant will often challenge the prosecution’s evidence by presenting evidence in his or her defense.

This evidence may come in the form of videos, audio recordings, documents, or other physical, tangible evidence. This evidence may come in the form of the testimony of the defendant himself or herself. Or this evidence may come in the form of the testimony of other witnesses.

Rights of the Defendant

A defendant has several important and related constitutional rights.

A defendant has a right to present a defense.  A defendant has a constitutional right to compulsory process – to compel witnesses to appear in court.  A defendant has a right to testify.

These are only a few of the rights a defendant has, but these are the rights most affected by a witness’s invocation of the 5th Amendment.

Witness Actions Affecting a Defendant’s Rights

What happens when the defendant wants to call a witness to the stand to testify, and that witness has a Fifth Amendment right to remain silent?

If a defendant knows a witness will invoke the Fifth Amendment if called to the stand, the defendant may not call the witness to the stand in the presence of the jury. The prosecutor may not do this either.

The reason for this rule is that calling a witness to the stand in front of the jury knowing the witness will only invoke the Fifth Amendment right to remain silent may imply guilt or other motive of the witness to do so. This is improper and quite often, the perceived motive of the witness in doing so may be entirely inaccurate.

The Effect of a Grant of Immunity Requested by the Prosecution

The prosecutor who wants to call a witness to the stand, but knows the witness will invoke the Fifth Amendment right to remain silent, has an option that a defendant does not have.

The prosecution may request that a court grant the witness immunity from the use of that particular testimony against the witness in a future criminal proceeding against the witness.

The prosecutor may still charge, or continue pursuing a case already filed, against the witness, but the prosecutor may not use information learned solely from, or because of, the witness’ immune testimony.

Once a prosecutor applies to the court for witness immunity, and the court grants the immunity, the witness must testify or face contempt of court.

Defendants Cannot Force a Grant of Immunity

The defendant, on the other hand, does not have the option of applying to the court for a grant of immunity for a witness the defendant wants to call to the stand, but knows will invoke the Fifth Amendment. Yet, a defendant has a right to present a defense.

Courts in Colorado have unfortunately held that the right to present a defense is not absolute and that a defendant cannot compel a witness to waive the Fifth Amendment right to remain silent, or against self-incrimination.  Defendants cannot force a grant of immunity either.  Therefore, a defendant’s right to present a defense stands second to a witness’s right to invoke the 5th Amendment and a prosecutor’s sole discretion in granting witness immunity.

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