Legal Question in Constitutional Law in Florida

Fifth Amendment Right and Immunity

I would like to know the answers to the following questions:

1. Under what circumstances can a judge or prosecutor compel an individual to answer questions and produce documents over that individual's assertion of his or her Fifth Amendment right to not be a witness against him/herself in connection with any actual or potential criminal matter ?

2. Under what circumstances can an individual persist to decline to answer questions or produce documents, even if he/she is ordered to do so under a grant of immunity that is supposedly coextensive with his/her Fifth Amendment right ?

3. What other privileges (in addition to the Fifth Amendment) can an individual assert in order to lawfully justify his refusal to answer questions or produce documents in connection with any court or official proceeding ?

4. How can an individual best phrase his/her Fifth Amendment and other privileges/objections to answering questions or producing documents in connection with any court or official proceeding ?

5. How can an individual best insure that there is an accurate and complete record of the questions asked & production requests made & his/her objections/refusals based on the 5th and other available privileges ?

Thanks!


Asked on 5/31/04, 12:45 am

3 Answers from Attorneys
Charles Aspinwall Charles S. Aspinwall, J.D., LLC

Re: Fifth Amendment Right and Immunity

1. When prosecution is impossible because of the running of a statute of limitations, for example, or when immunity from prosecution has been properly granted by a prosecutor and affirmed by the presiding judge.

2. With the proper grant of full immunity from prosecution, the only other protection the law provides is for trade secrets in a business setting, and those must be revealed to the judge.

3. That's it. No other immunities when full immunity from prosecution is properly granted.

4. "I decline to answer on the grounds that my answers may tend to incriminate me, and I invoke my privilege against self-incrimination provided by Amendment Fifth of the United States Constitution.

5. Have a trained court report record all proceedings.

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Answered on 5/31/04, 10:46 am
Regina Mullen Legal Data Services, PLC

Re: Fifth Amendment Right and Immunity

These are legal treatise questions, --not really appropriate for this site.

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Answered on 6/01/04, 7:22 pm
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Fifth Amendment Right and Immunity

I agree with Mr. Aspinwall's answer, though I would add that in some situations the witness can object on the ground that the questions would invade his personal privacy. If the intrusion is great and the relevance of the information to the case is minor, the court could side with the witness.

If you are the witness in this situation, you should get a lawyer immediately. The issues you must deal with here are complex and nuanced, and you need someone on your side who can understand the implications of each development in the case and guide you accordingly. If you genuinely risk criminal liability and can't afford a lawyer, you should be able to have one appointed by the court at no cost to you.

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Answered on 5/31/04, 4:39 pm


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