If you take the stand in your own defense, do you completely wave your 5th Amend. rights?

Or rather, your right against self-incrimination. I couldn’t fit that many characters into the subject field. Is the prosecution only allowed to address points that you made? Can they ask you, “Mr. Adams, did you kill Mr. Signorino?” If you deny it, and you are convicted, do you also face a perjury charge?


I was under the impression that, at least in the US, if you take the stand, you completely waive your 5th amendment rights as it pertains to the offense for which you were charged and must answer all relevant questions posed by the cross-examining prosecutor. If you were asked about something else (e.g. if you were on trial for smuggling Cuban cigars into the US on December 5, 2011 based on the contents of an package you allegedly had on you at the border on that date, and the prosecutor asks you if you ever smuggled Cuban cigars in the 1990’s or if you ever committed rape, you might be able to raise a Objection as to the Relevancy of the question).

In general (although I’m sure there is someplace with a different rule), the scope of cross examination is limited to topics addressed in direct examination and the witness’s credibility. With an ordinary witness, the cross-examiner is free to call that witness as his or her own witness to get around this, but I’m pretty sure that it’s not allowable with the defendant. While you probably couldn’t be asked if you’ve ever committed rape or assault, you almost certainly could be asked if you’ve ever been convicted of fraud, as fraud relates to credibility in a way that rape and assault do not.

I think the fifth amendment issue only arises in grand jury testimony. That is if you answer any questions you waive the right to refuse to answer others. As to being a defendant, what could you testify to that would not leave you open to cross examination for which you would like to take the 5th amendment? Taking the 5th means only that you cannot be compelled to give testimony against yourself. It doesn’t mean a jury cannot infer your guilt from doing so.

Whoa! – I think this statement is wrong. I specifically remember instructions from the Judge to the jury saying that ‘the defendant has the right to decline to testify, and you the jury should not make any assumptions about their guilt or innocence based on that’.

I suppose a jury member could still do so, but legally, they aren’t supposed to.

Declining to testify is in no way “taking the fifth.” If you decline to testify you stay in your seat at the table and the jury cannot legally infer your guilt from that decision.

You are, of course, right when you presume that they consider the fact anyway.

Taking the fifth is testifying to the fact that to answer honestly would incriminate you.

What? Where did you get that idea, watching mobster movies? The Fifth Amendment is the reason you are able to decline to testify in the first place. You don’t have to say anything about the Fifth in order to do this, of course, if that’s what you mean, since it’s normally taken for granted, but it’s taking the Fifth nonetheless.

Reread my comment please. I believe it should be clear what I said. “Taking the fifth” is what the defendant in the OP would be doing on the witness stand. The OP asked if a defendant testifying on his own behalf could subsequently exercise his 5th Amendment rights. This is not about a defendant choosing not to testify, a right that is given to him under the fifth amenment.

I would imagine that by agreeing to testify, taking the stand, you at least lose the right for the jury to disregard your refusal to take the stand. Therefore, they can read whatever they want into any response under oath that says “I refuse to answer on the grounds it may incriminate me.”

Take a look at the old 1950s Kefauver hearings. The various gangsters were called to testify under oath, yet did not answer by invoking their Fifth Amendment rights.

You can decline to answer any question while testifying while pleading the fifth. You do not give up your rights by taking the stand.

Congressional hearings are not courtrooms, though. The mobsters were akin to ordinary witnesses.

I presume that you could plead the 5th if asked about an unrelated crime while under cross examination.


But the rule is that the jury cannot infer anything from your “refusal to testify”. Once you agree to testify, you lose that protection. If during your testimony, you invoke your right not to incriminate yourself, I don’t think that is part of what the jury must disregard - they can consider what you were asked and how you responded.
“Did you kill him?”
“I refuse to answer on the ground that it may incriminate me.”
Hardly a sound defence strategy.


With regard to the Kefauver hearings I did not see the tapes but it seems they were Senate hearings and the witnesses were subpoenaed. They would have been in contempt had they not appeared. There was no jury, except a court of publiuc opinion. They were obliged to take the stand but could not be forced to testify against themselves.

This is where it is tricky. It is my understanding that if you answer any question at all, you lose your right to refuse to answer any other question. This may not be true, it is just what I have heard.

IANAL but, my understanding of it is one of the provisions of the Fifth Amandment means that the prosecution cannot call the defendant to the stand to give any testimony. The defense if they wish to can call their client (i.e. the defendant) as a witness and give testimony, BUT, the rub is that if the defense does this then the prosecution must be allowed to cross-examine their witness (i.e. the defendant). And a prosecutor can ask a defendant any question relevant to the defense testimony they just gave. So to avoid contempt of court or perjury a witness can only refuse to answer a prosecutor’s question by taking the Fifth. And although juries are* not supposed *to infer guilt just from this everyone knows that if a defendant repeatedly ‘pleads the Fifth’ this is exactly what they do!

Consequently the only way for a defendant to avoid being cross-examined by the prosecution is to not ever take the stand in their own defense.

At least that’s what Law & Order taught me! :smiley:

While testifying, am I allowed to refuse to answer questions that wouldn’t incriminate me? (My understanding is that is NOT allowed, but maybe I’m wrong.)

I would hope so. Otherwise, it seems like the 5th is sort of a toothless amendment. My reasoning:

Suppose the prosecution asks me on the stand, “Are you guilty?” Now, there are two possible answers, “Yes”, and “No”. If I am compelled to answer “No” when asked, “I’ll plead the 5th” can only mean one thing, and is therefore equivalent to “Yes”. Meaning, the refusal to let me plead the 5th when the answer is “no” effectively forces me to incriminate myself when the answer is “yes”. Does this make sense to anyone?

If indeed I’m not allowed to plead the 5th when I wouldn’t be incriminating myself (which is my understanding), how is this paradox resolved in the law?

The Fifth Amendment still applies to congressional hearings.

See Watkins vs United States 1957.

If you had a hardcopy of the 5th Amendment, you could wave it as you testified, at least until the judge told you to stop.

But if you want to choose not to exercise a right, you must waive it.

/Grammar Nazi humor

IANAL, yada yada… I think the point is - if you are on trial, you simply decline to testify. The jury cannot infer anything from this, it’s pretty normal. Not every innocent man can sound innocent under the right type of questioning from the prosecution.

If you chose to testify, be prepared to to be cross-examined. If you refuse to answer be prepared to have that response interpreted however the jury or judge like.

(In an analogous type of case - the classic “tell me your password” case. Someone coming into the USA had their laptop checked by border guards. He logged in, they found kiddie porn, and they arrested him; his laptop got shut down. Later, they wanted him to fire up his laptop again, he refused. One of the arguments was his right to not incriminate himself. On that detail, the judge said that since the border guards had already seen the material in question, and he had shown them, he no longer had a right to refuse. They knew exactly what they were looking at, and having consented to display the evidence once, he could not refuse the next time. He waived his right when he showed the incriminating evidence the first time. )

So for the OP question - if you agree to testify for your defence lawyer, you cannot refuse to answer questions about the same matter from the prosecution. You waived your right when you took the stand. You maybe could plead the fifth on an unrelated topic, but the prosecutor cannot ask you about unrelated topics.

(L&O also teaches us about “opening the door” to a topic. Cross examination is exactly that. They can ask for more details about what the defence already asked. If the defence didn’t ask about X, prosecutor can’t bring it up. - perhaps a real lawyer can clarify these rules - Anyway, the judge gets to decide what’s relevant ot the case.)

Where the fifth is most relevant is for the witnesses, those testifying at congressional hearings, grand juries, etc. At a trial, only the defendant is on trial. A witness can’t be 'found guilty". SO if I am asked, at Fred’s trial “did you kill Joe?” I plead the fifth. If they then decide to charge me with Joe’s murder, they cannot mention at my trial that at another trial, or the grand jury, I plead the fifth or hat I answereddetail A but took the fifth on B. (They could, however, summon Fred to testify).

If someone does plead the fifth, one tactic is to offer immunity. They could offer me immunity to nail Fred, or vice versa - depending on who they believe and who they want to prosecute.

So the gangsters at the senate hearing took the fifth. If they had admitted they were running a racket, that (sworn) testimony could be used against them. If tehy lied and it could be proven (maybe by picking at the details) they could be charged. Their fifth can’t be used in any way. It’s not like the police did not know they were involved. The trick is still proving it without forcing their testimony - the whole point of the fifth.

It’s true that the prosecutor can only cross-examine on matters raised in direct examination, but I can’t see how a Defendant’s testimony would be relevant if he didn’t touch on the crime itself. He would have to make some relevant assertion about how he wasn’t there at the time or something. What else would he be testifying about?

I mean if you are on trial for embezzlement, for example, the prosecutor cannot cross–examine and ask “did you traffick in drugs?” unless the defence questioning mentioned it.

Yes, once you tell your alibi, “I was at a Guido’s restaurant” then the prosecutor can ask details, “who was with you, how did you pay, what did you order,who was your waiter, is it in their receipts for that night, when did you leave, how did you get home from there…”

So the question is, if all you did was say “I was at a restaurant”, no mention of the murder, then the prosecutor can’t ask “did you murder Joe?” I assume if the defence lawyer says “where were you on the night of the murder?” then that opens the door to that question?