How to Take the Fifth

Contributor: Carrie Ferland

You hear it all the time--in the news, on television and

movies, you even use it in jest while hanging out with
family and friends. "I take the fifth!" But what does it
actually mean to take the fifth? Who can do it, and why?
And what protection does it actually offer you?

Michaele and Tareq Salahi--the infamous White House

gatecrashers who left President Obama infuriated and
millions of viewers in shock--are about to find out. The
party-crashing husband-and-wife team announced they
would be invoking their rights to take the fifth and refuse
to testify to in response the Homeland Security
Committee's decision to subpoena them. And now the
entire world is wondering: can they really do that?

The short answer is, surprisingly, yes. A well-known

loophole allows a witness to decline to testify against
someone else if that testimony will incriminate her, even
if she participated in the crime, as well. The protection
doubles when the witness is married to the accused,
because a wife cannot be forced to testify against her
husband (and he against her) if she chooses to keep
quiet. If the Salahis make good on their threat,
prosecutors may have a tough time proving the couple's
guilt--assuming, of course, the Salahis didn't do anything
stupid, like pose for a picture with the President while
being videotaped for a national broadcast.

Of course, when your crime just happens to be witnessed

by millions of Americans on national television, your right
to avoid self-incrimination isn't likely to do you much
good. For those of us who prefer to commit our criminal
acts in private, taking the fifth might actually do some
good:

First, you must understand what it means to "take the

fifth." This is a common phrase used by witnesses, which
allows them to invoke their Fifth Amendment rights.
Under the Fifth Amendment of U.S. Constitution, a
witness has the right to remain silent on the stand if
testifying would cause him to incriminate himself. Think
of it as the courtroom equivalent of your right to remain
silent while being arrested: if answering the question
would implement you in a crime, you can refuse to
answer.

For married couples, an additional protection allows

spouses to avoid testifying against each other. Called
"spousal privilege," this protection draws on the concept
of marital confidence; that is, when spouses share
intimate information with each other, it is done with the
confidence that the other spouse will never reveal the
information to anyone else. Courts cannot take
advantage of marital confidence, and cannot force a
spouse to testify against her partner, even if she her
partner revealed details about the crime to her, she
witnessed him commit the crime, even if she participated
in the crime herself.

With all of this in mind, you, too, can take the fifth and
invoke your right to spousal privilege, and avoid testifying
against your spouse. Just take care that your crime wasn't
televised and watched by an entire nation, first.

Preparing For Court

Obtain a copy of the subpoena that you were served
requiring you to testify at the preliminary hearing, if you
haven't already. If you have lost your original subpoena,
you can contact the clerk of the court where the criminal
matter is being handled and request a new copy by
providing the docket number or the name of the
individual who is being charged. If you have legal
representation, provide your attorney with a copy of the
subpoena immediately.
Prepare to attend the preliminary hearing. This is the first
chance you will have to take the fifth, so you'll definitely
want to be present. Dress accordingly: business
professional, which means a knee-length skirt,
conservative dress or full-length slacks, button-down
shirt, conservative blouse or sweater, and a suit jacket for
women; slacks, a button-down shirt or polo, suit jacket or
three-piece suit, and tie for men. No sneakers, jeans, t-
shirts, tracksuits, dresses, revealing clothing, "club wear,"
ripped or stained clothing, or anything you wouldn't wear
to Sunday mass for either gender. Remember, the
courtroom is not the place to be setting fashion trends.
The goal is to look as professional as possible and blend
in with the rest of the crowd.
Arrive at court on the day the hearing is scheduled at
least 20 minutes early. Bring along your copy of the
subpoena, your photo identification (like your driver's
license) and any other documents related to the case that
you previously received. Enter the room where the
hearing is schedule; you can ask a security guard or clerk
for assistance. Find a seat in the gallery and wait quietly.
When the bailiff calls the case name and docket for which
you were called to testify, approach.
Pleading the Fifth
When you are called to the stand to testify, you will hear
the prosecutor say something akin to, "the prosecution
calls (your name) to the witness stand." Approach the
witness stand, which is the box located next to the
judge's bench at the head of the courtroom. The bailiff
will then ask you if you "swear to tell the truth, the whole
truth, and nothing but the truth, under penalty of perjury,
so help you God?" Respond with "I do" or "yes," then sit
down.
Immediately after sitting, turn to the judge and say, "Your
honor, I respectfully invoke my rights under the Fifth
Amendment of the U.S. Constitution on the grounds that
answering questions may incriminate me." The judge
may direct you to provide your full name, to which you
should comply. Answering any other questions will
effectively waive your right to take the fifth, and you will
then need to answer any additional questions asked of
you while on the stand.
Wait until you are excused from the witness stand, then
step down and return to the gallery. If you have no other
business in court to attend to, you may leave as soon as
you are excused