Taking the Fifth

The Constitution

A person accused of a crime has the right against self-incrimination under the Fifth Amendment of the United States Constitution. Simply put, this means that if one is taken into custody, you have the right to keep your mouth shut and say nothing. During the trial, the government has the burden to prove your guilt beyond a reasonable doubt, and you cannot be compelled to testify and may remain silent.

A crime is a wrong against the government, for which the government can pursue criminal charges. A tort is a civil wrong against a person. Many wrongful acts are both crimes and torts. In a criminal case, the jury is instructed by the judge that it cannot hold the defendant’s failure to testify against him. In a civil case, however, the judge will instruct the jury that the refusal to testify should prejudice the defendant. This conundrum presents a real problem for a defendant who is defending a civil lawsuit but also has exposure to criminal prosecution.

In Taking the Fifth, Roscoe Carmichael III is arrested for distributing cocaine. While the DEA and police are executing their search warrant, they discover sex tapes of Carmichael and seven women. Carmichael claims that the tapes were made consensually and that the women knew they were being taped. Steine & Davis, who represent several of the women, admit that the sex was consensual, but claim that Carmichael’s secret videotaping of their encounters violated their privacy.

How does Carmichael preserve his Fifth Amendment right against self-incrimination in the criminal case and yet defend himself in the civil cases? The Fifth Amendment turns out to be a two-edged sword which Steine & Davis skillfully use holding it against Carmichael’s throat to vindicate the rights of their clients.