For those that served on a jury . Pleading the 5th is a right. If the defendant pleads the fifth did you look at that favorably or did you assume there was some guilt involved ?

26 comments

  2. I haven’t been selected to serve on a jury but I understand the question.

    If someone doesn’t want to answer a question for fear of self incrimination, then that means that answering truthfully would incrimate them. 🤷

  3. I think this should almost never happen in a court room. If you are afraid you will be asked questions that may incriminate you then you would just decide to not testify as you are not required to.

    This is probably more of politics than anything else.

  4. If it’s a defendant in a criminal case pleading the 5th, that might be the one time I would assume there is something illegal involved. Doesn’t necessarily mean to vote guilty of the crime.

  5. In general a judge will tell a jury to ignore any statements or inferences related to calling the fifth amendment in criminal trials. However in civil trials (law suits) you can view someone negatively for taking the fifth amendment.

  6. I’m a bit of a contrarian in this regard.

    I would assume the fucking lawyer is being an asshat (and I’d be correct every time) and feel empathy for the witness.

    I suspect this is why I’ll never sit on a jury…

  7. Been on a jury recently, but not that kind of trial.

    By the time it got that far, I assume the defense attorney would arrange it so there’d be a minimum of “I plead the fifth” *on the stand*. That is, they’d invoke the right, but minimize how long the jury sees actual “I plead the fifth”ing. Just on the principle that once wouldn’t look as bad as a dozen times in a row or something.

    Being aware of this, I’d try to not let it affect my judgment.

  9. I’m surprised how many people in this thread either don’t understand that constitutional right, or would be okay taking it away from others.

  10. I never had anyone plead the fifth, but I would see it as a comment about their life, rather than the defendants.

  11. You’re instructed that you can’t make any negative inference regarding the right to take the 5th. This is different in civil court though.

  12. Them have the right to plead the 5th. If on a jury I have the right to assume they are hiding something in doing so.

  13. i assisted with jury selection (criminal defense) and the attorney i worked for asked this question to the pool of jurors. i wanna say like 30% of them said that they felt it would reflect poorly on the defendant

  14. I’ve served on a jury where the defendant didn’t speak. He never got up on the stand and said “I plead the fifth!”, he just sat quietly next to his lawyer the whole time.

    As it was explained to us, it was the prosecutor’s job to present a bulletproof case, and it was the defense attorney’s job to poke holes in that case. Defendant sitting there quietly doesn’t mean a damn thing.

    We found him not guilty. Jury all agreed “he probably did it, but there are some gaps in the prosecution’s case”.

    Edited to add a few more details–

    * When I googled the case after the trial, I learned some more details that made it clear that he’d committed the crime. Still, I think we (the jury) came to the correct conclusion based on the information that we were presented with. Dude had apparently also just started a 30 year jail sentence for something unrelated, so whatever he’s locked up anyway.
    * Young black male defendant, with an all white jury, right when BLM was starting to be a big thing. I have sometimes wondered if we were subconsciously more sympathetic to the defendant because of all that.

  15. It’s interesting to me that during the jury selection process the *prosecutor* (at least in my state) explains how “pleading the 5th” is a right and the jury absolutely positively should not take refusal to testify as an admission of guilt.

    And yet people still assume “if they didn’t do it they’d say so” as if no lawyer ever has taken something someone has said and twisted it.

  17. In a criminal trial, the defendant normally won’t explicitly plead the Fifth. They invoke their Fifth Amendment rights by not going on the witness stand in the first place. The prosecution can’t call them as a witness (at least without their consent, but they aren’t going to consent). The rule exists partly to avoid this exact problem: if the prosecution could make the defendant say “I refuse to answer on the grounds that it may incriminate me,” jurors are likely to think “they’re probably guilty.”

    When the defendant does take the stand, it means they’ve waived some of their Fifth Amendment rights. At that point, the prosecution has a right to cross-examine them. There are still some Fifth Amendment rights on cross-examination, but for the most part the defendant has to answer relevant questions.

  18. AsTrump said often, before he took the 5th a million times himself, people who take the 5th are presumed to be guiltily hiding something. The law clearly tells us not to make that presumption, but most people do anyway.

  19. One is supposed to look at it neutrally, not positive or negative. That’s how I would look at it. I served on a jury. The defendant wasn’t called as witness by either attorney. Pleading the fifth to any question should be treated the same as that.

  20. I don’t think most normal people would look at it unfavorably, but scummy prosecutors and detectives will try everything to get around it.

    In particular, they can try and use your silence against you in court (i.e. “Mr. X was so cold blooded that he sat silently in the police car and refused to speak a word after his wife was found murdered.”)

    Apparently the “right to remain silent” doesn’t always apply unless you explicitly state “I’m invoking my right to remain silent.” I”m sure there is some nuance there. I think the DA prosecuting Kyle Rittenhouse got a tongue lashing from the Judge when he brought up Rittenhouse’s silence during police questioning so it’s probably somewhat dependent on location.

  21. The amount of people who *do* think it looks suspicious is part of the reason I think the public cannot be trusted to judge a case even if all the jurors’ lives depended on it

  22. I think it’s a question that should be asked to every potential juror. If they say they would be influenced by this they should be excused immediately. This is something that is explicitly protected for a reason.

  23. If you find someone guilty because their refusal to testify means they obviously must have done it then you’ve really given the defendant a gift when they immediately appeal that decision and win because the jury convicted them on something other than the facts.

    It’s why its important to know who has the burden of proof. It is the state’s job to prove that someone did something, it’s not the defendants job to prove they didn’t do something. If the state can’t prove their case then the defendant should win the case.

    Yes you might personally believe that someone still did something even if you can’t prove it but when you’re tasked with the job of determining guilt that could send someone away for a long time you can’t just decide guilt or innocence based on a vibe.

  24. You’re not required to take the stand in your own defense in a criminal trial. That’s why it rarely happens outside of episodes of Law & Order.

    If someone were dumb enough–or got bad enough legal advice to do that–and then pled the Fifth? That’s incriminating in and of itself.

  25. I take it for what it means: The defendant made the decision to remain silent, as is his or her right — a right that, were I in that position I would want for myself — and thus I draw no inference from it and look only at the remaining evidence to see if the state has met its burden of proof.

    Caveat: I’m a lawyer and so prosecutors always kick me off of juries.

  26. Generally, the lawyers will know long before the person is on the stand, and they won’t ask questions that result in somebody “taking the 5th” in front of the jury.

    If someone did, though, I’d do my best not to take his refusal either way. It neither proves nor disproves either case.

    Yes, that’s hard to do.

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