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Right against self-incrimination

Colorado residents may have heard about the right to remain silent. In popular parlance, people refer to this as "pleading the Fifth." This right is stated clearly in the Fifth Amendment to the United States Constitution, which says that a person cannot be compelled to testify against himself or herself when accused of a crime.

Practically speaking, the right against self-incrimination embraces all stages, from initial police questioning to trial. At trial, no one can force a defendant to testify. However, a defendant has the right to choose whether or not he or she will testify. If a defendant does not testify, the jury is instructed that they may not use a refusal to testify as an inference of guilt. If a defendant does testify, he or she may then be questioned about anything and may not attempt to selectively enforce his or her right against self-incrimination.

Witnesses in criminal cases may also assert their Fifth amendment right not to testify in some cases. When testifying would lead them to potentially be charged criminally themselves, either in the case in which they are testifying or for another crime, witnesses often assert their Fifth amendment rights. They may be compelled to testify regardless, however, if the prosecutor grants them immunity for their testimony or if their testimony is compelled by subpoena.

When police officers believe someone has possibly been involved in alleged criminal activity, they may not have enough evidence to charge them with a crime. In that situation, officers will often try to question people or get them to talk, as they can then use anything the person says against them. People need to remember that they do not have to talk and that their right against self-incrimination is protected as their constitutional right, even under pressure by law enforcement.

Source: Findlaw, "Fifth Amendment Right Against Self-Incrimination", December 02, 2014

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