‘Taking the Fifth’ Before Congress: A New Ethics Twist


It’s unethical for a prosecutor to put a witness on the stand in a criminal trial when he or she knows in advance that the witness is going to take the Fifth Amendment and refuse to testify at all.

Legal ethics authorities reason that the only effect of that kind of testimony is not to bring out relevant evidence but simply to prejudice the jury against the witness. After all, the jury would conclude, if the witness didn’t have something to hide, why did he or she take the Fifth? It’s a violation of the witness’s constitutional rights to permit that kind of inference to be made by a jury.

What about testimony before a congressional committee? Can a lawyer for a committee haul a witness before the panel, knowing that the witness will claim the Fifth Amendment?

In Washington, D.C., where congressional probes often go on at the same time as parallel criminal prosecutions, that can be a key question.

The Legal Ethics Committee of the D.C. Bar has issued an opinion that opens the door considerably wider than before for congressional staff lawyers to do this.

Please see full article below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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