"Taking the Fifth"

A witness in a courtroom cannot be compelled to give testimony that would force her to admit that she had committed a crime. The familiar phrase "I take the Fifth" really means that the witness is admitting that were she to answer, she would be confessing that she herself had committed a crime.

The right not to be forced to give incriminating testimony against oneself comes from the Fifth Amendment to the United States Constitution. The applicable part reads: "No person . . . shall be compelled in any criminal case to be a witness against himself . . ."

Occasionally, a victim in a domestic violence case will mistakenly believe that anyone can refuse to testify by simply "taking the Fifth" just because she does not want to testify. Although a spouse may choose not to testify against her abusive spouse, a girlfriend or paramour may not simply refuse to testify against a defendant. Unless her testimony would involve admissions of criminal activity on her own part, the victim may not assert a Fifth Amendment privilege. A judge may find a witness who refuses to answer a question in contempt of court. Punishment for contempt of court can include fines or jail time.

When an answer to a question would really tend to incriminate the witness, the witness may invoke the Fifth Amendment and refuse to answer the question. The privilege against self-incrimination, once invoked, creates a rebuttable presumption that the answer would tend to incriminate the witness. State v. Carey, 808 S.W.2d 861 (Mo. App. E.D. 1991). The privilege extends not only to refusing to answer the question asked, but also to a refusal to explain specifically how the answer might incriminate the witness. State v. Ruff, 729 S.W.2d 556 (Mo. App. E.D. 1987).

When a witness attempts to invoke the Fifth Amendment, a prosecutor should have the witness clarify whether she is saying that her answer would involve admitting that she had committed a crime. Often, it will become clear to the Court that the witness misunderstood the application of the Fifth Amendment and was simply trying to avoid testifying in absence of a valid privilege.

When a domestic violence victim successfully invokes the Fifth Amendment privilege against testifying, the prosecution of the case becomes more difficult for the prosecutor, but the case can often still be won.

If the witness is not the spouse of the defendant, the prosecutor can take steps to force the witness to testify by granting her immunity from prosecution. The procedure involved is a fairly new one, created by statute in Missouri in 1997. It involves getting an order from a judge other than the one presiding over the abuser’s trial. The order from the second judge would compel the victim to answer the questions under penalty of contempt of court. See Section 491.205, RSMo.

When a witness successfully invokes the privilege, another option for the prosecutor is to offer into evidence her prior testimony at previous hearings (such as preliminary hearings or bond hearings). See State v. Franks, 685 S.W.2d 845 (Mo. App. E.D. 1984) (preliminary hearing transcript); State v. Kee, 956 S.W.2d 298 (Mo. App. W.D. 1997) (bond hearing testimony).

Also, in many instances the case can still be proven by using testimony of other eye-witnesses, a confession by the defendant, or hearsay testimony of what the victim said to police officers or 911 dispatchers either through the excited utterance exception or the residual hearsay exception. See State v. Edwards, ___ S.W.3d ___ (Mo. App. W.D. 2000). If a victim asserts a spousal privilege, her prior testimony at previous hearings (such as preliminary hearings or bond hearings) can be admitted into evidence. See State v. Franks, 685 S.W.2d 845 (Mo. App. E.D. 1984) (preliminary hearing transcript); State v. Kee, 956 S.W.2d 298 (Mo. App. W.D. 1997) (bond hearing testimony).

The Cape Girardeau County Prosecuting Attorney’s Office routinely attempts to continue to successfully prosecute cases even when the victim invokes a Fifth Amendment privilege against testifying.