It is not only criminal defendants that have been formally charged with a crime that have 5th Amendment rights. Witnesses called to testify in the trial of another person may also have 5th Amendment rights.
What is the 5th Amendment Right?
The right to remain silent, or right against self-incrimination, is found in the 5th Amendment to the United States Constitution. It is also found in Article II Section 18 of the Colorado Constitution.
This right protects an individual from being forced to make statements that incriminate himself or herself. This right also applies to questioning of an individual before arrest and during grand jury proceedings. This right does not protect an individual from incriminating a third party.
- The 5th Amendment to the United States Constitution reads, in part: “No person […] shall be compelled in any criminal case to be a witness against himself […]”
- Article II Section 18 of the Colorado Constitution reads, in part: “No person shall be compelled to testify against himself in a criminal case […]”
Colorado courts have long held that the language in these constitutions prohibiting a person from being required to “be a witness against himself” or “testify against himself” in a criminal case also apply to witnesses in an investigation. It is clear that this language was not merely intended to protect the person who is already being prosecuted, the defendant. A witness cannot be required to give testimony showing the witness himself or herself committed a crime.
Waiver of this Right
The right to remain silent, or right against self-incrimination, may be waived. This applies to witness as well as defendants. There are several ways to give up, or waive, this right.
An individual who chooses to initiate a conversation and make statements to police, to an undercover agent of the police, or to a police investigator is giving up this right. Statements that a person volunteers are not protected by the right against self-incrimination. There are other ways this right is waived as well.
Prohibition against Calling a Witness to Take the 5th before a Criminal Jury
Prosecutors may not call a witness to testify before a jury in a criminal trial when the prosecutor knows the witness will invoke his or her right against self-incrimination in front of the jury. Doing so may prejudice the defendant in the trial and cause the jury to speculate the reason.
The court may hold a hearing outside the presence of the jury and question the witness about his or her intent to invoke this right, however.
Prosecutors who wish to call a witness in the trial of a defendant can offer the witness immunity. The witness now can be compelled to testify to information that would otherwise be protected by the right against self-incrimination. If the witness continues to refuse to testify after a grant of immunity, the witness may face contempt of court citations.
Be aware that there are two very different types of immunity: use immunity and transactional immunity.
- Use immunity prevents the prosecution from using the witness’ testimony or evidence derived from the witness’ testimony against the witness.
- Transactional immunity prevents the prosecution from prosecuting the witness for the entire transaction that is the subject of the witness’ testimony.
A grant of use immunity, however, is sufficient to allow a witness to be compelled to testify.