Is taking the Fifth Amendment under oath considered perjury?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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The crime of perjury is very specific. When testifying in court, a witness has an obligation to give truthful testimony. In fact, before testifying, a witness must take an oath before a judge and jury swearing that he will tell the truth, the whole truth and nothing but the truth. After taking this oath, if the witness then intentionally gives false testimony, he has committed the crime of perjury for which he could potentially go to jail.

How the Fifth Amendment Applies in Perjury Cases

On the other hand, if telling the truth under oath would implicate a witness in a crime for which he could be tried and convicted, he has a right under the Fifth Amendment of the Constitution not to incriminate himself. Under these circumstances, a witness has an absolute right to “plead the Fifth” to not testify. Since by exercising his right against self-incrimination he is thereby not testifying at all, he is not giving false statements under oath and cannot be accused of perjury.

A witness’s right not to incriminate himself is zealously guarded by judges in the courtroom. If at any time during testimony a judge believes the witness is about to incriminate himself, he will halt the proceeding. Outside the presence of the jury, he will give the witness time to consult with an attorney. After the consultation, if the witness has been advised by his new counsel not to testify, he will be allowed to invoke his Fifth Amendment right against self-incrimination and not be forced to testify by the judge. By the same token, if counsel advises that he will not incriminate himself, the witness must testify. If he then gives false testimony, he can be prosecuted for perjury.

There are times when a witness cannot invoke the right against self-incrimination. A witness cannot plead the Fifth when the statute of limitations has run with respect to the crime for which he would implicate himself, when the testimony is simply embarrassing or when he will not implicate himself in the crime. Under these circumstances, if he does not testify truthfully, he can be charged with perjury for giving false statements under oath.

Direct any questions you may have about the relationship between the Fifth Amendment and perjury to a criminal attorney.

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