In a criminal deposition can you plead the 5h if it may incriminate yourself? If so, do you have to answer for the record?

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In a criminal deposition can you plead the 5h if it may incriminate yourself? If so, do you have to answer for the record?

This person is being deposed over a criminal case pending, but is not being charged at this time.

Asked on June 5, 2009 under Criminal Law, Iowa

Answers:

B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Ordinarily, as long as it's possible for you to be prosecuted for something, you can't be forced to testify about it.  But there quite a few ways around that, in some situations, and there are some variations in state law and procedure.  I'm not an Iowa lawyer, and I don't have all of the facts, which any attorney would need to provide reliable advice.  The person in this position really needs to talk to an experienced criminal lawyer in the area about this.  One place to look for an attorney is our website, http://attorneypages.com

It doesn't matter whether there are pending charges or not;  the whole point of the privilege is that you don't have to say something that could be the basis, or part of the basis, for future charges.  However, the prosecutor will sometimes give immunity (which can take different forms), meaning that the testimony is given under a binding agreement that it can't be used against the witness, only against the defendant the prosecutor really wants to convict.  With immunity, continued refusal to testify could be contempt of court.

J.V., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

you are always always to exercise your 5th amendment rights whether in a deposition, during testimony, etc. When you do so it can oftentimes lead people to think the answer is something you know would incriminate you but that's a risk people sometimes take in order to remain silent.

If you have an attorney handling the matter it might be beneficial to discuss this with them. Ask for their opinion because they know the facts and what will best serve you in this case.


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