Perjury and the Fifth Amendment

by | Jan 19, 2018 | Blog Posts, Federal Criminal Defense, NC Criminal Defense, SC Criminal Defense

What is perjury? 

Perjury is willfully making a false statement under oath (or affirmation.) Perjury covers statements taken in court as well as statements taken in a deposition or affidavit. The main question is whether or not an oath or affirmation was required and was administered. Perjury is a Class F felony.

So, if lying under oath is a felony, how do I protect myself from making incriminating statements?

That’s a great question. Under the Fifth Amendment of the United States Constitution, a person has many rights. One such right is the right against self-incrimination. A person may assert this right if answering a question may implicate them in criminal activity.

If I lie to the police, is that perjury?

No, not usually. If a police officer is merely questioning you, lying is not perjury. However, you might encounter other issues, such as being charged with obstruction of justice. On the other hand, if you give a sworn affidavit to the police, this could be considered perjury in some situations. However, it will be difficult for you to mistake whether or not you are under oath. This is because someone must administer an oath or affirmation to you and then you must affirm or swear that the statement you are giving is true.

So, can I plead the Fifth during police questioning?

While this article focuses on the Fifth Amendment right against self-incrimination, it is important to note that you also have the right to remain silent during police questioning. You do not have to incriminate yourself during police questioning. In fact, you do not have to say anything at all, good or bad. Clearly indicate to the police officers that you are asserting your right to remain silent and that you do not wish to make any statements.

I am on trial for a crime. Can I plead the Fifth at my own trial?

Yes, but be careful. You have the full and absolute right to plead the Fifth and refuse to take the stand and answer any questions. However, if you do chose to take the stand, you cannot suddenly plead the Fifth when it comes time for State to cross-examine you. It is an all-or-nothing privilege. You either take the Fifth or you waive the privilege. Unfortunately, you cannot have it both ways.

I have been called to testify as a witness in someone else’s trial. Can I still plead the Fifth?

Yes. You can decline to incriminate yourself in a criminal proceeding against another person. A witness or victim can refuse to answer certain questions if answering them would implicate them in criminal activity. This is not limited to criminal activity relevant to the criminal trial in question, but extends to any criminal activity. Unlike a criminal defendant, a witness that is asserting this right may do so selectively, meaning he may answer questions that do not incriminate him and refuse to answer questions that do incriminate him. Remember that a witness is usually under subpoena, and is therefore being compelled to testify. However, the witness still may assert Fifth if answering a question would subject him to criminal liability.

I understand that I can plead the Fifth in a criminal proceeding. But what about a civil proceeding? Can I still plead the Fifth to avoid incriminating myself in a civil proceeding?

Yes, to avoid exposing yourself to criminal liability. A person that is testifying in a civil proceeding (whether as a Plaintiff, Defendant, or just a Witness) can assert the Fifth. You may assert the fifth in a civil proceeding if answering a question may subject you to criminal liability. You cannot assert the Fifth to avoid civil liability, however, as the protection is meant to guard against self-incrimination in the criminal realm.

Can I refuse to submit a blood or DNA test under the Fifth Amendment?

No. The Fifth Amendment applies only to testimonial statements. Biological material, while sometimes incriminating, is not a testimonial statement, and you cannot refuse to give it under this particular Amendment.

So, how do I decide whether or not to assert my Fifth Amendment right?

If you have questions about whether or not you may be subjecting yourself to criminal liability, you should contact a criminal defense attorney. Once you make a statement, it is hard to come back from the consequences of that statement. It is better to play it safe if think something might affect your future.

DISCLAIMER – This forum is intended for general questions and comments about the particular law or topic. Comments are public and are not protected by confidentiality or attorney-client privilege; therefore, they can be used against you in court. Please refrain from revealing your identify or specifics about any actual criminal case. No attorney-client relationship is created in this forum.

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