The Fifth Amendment - "To Take the Fifth"
Civil or criminal proceedings
People have asserted the privilege in grand jury or in congressional hearings in the 1950s, where witnesses testifying before the House Committee on Un-American Activities and the Senate Internal Security Subcommittee claimed the privilege in response to questions concerning their alleged membership in the Communist Party. The amendment has also been used by defendants and witnesses in criminal cases involving the Mafia. The Supreme Court has also used the incorporation doctrine to apply the self-incrimination clause against the states under the Fourteenth Amendment.
The New Jersey Supreme Court recognized the right of a witness to "take the 5th" if called as a witness at a trial. State of New Jersey v. P.Z. (A-21-96) - Decided November 26, 1997
The Supreme Court wrote:
In New Jersey, the privilege is derived from the common law and is codified in our statutes and rules. State v. Reed, 133 N.J. 237, 250 (1993); see N.J.S.A. 2A:84-19; N.J.R.E. 503. Its importance is not diminished by the lack of specific constitutional articulation; rather, from colonial times, “New Jersey has recognized the right against self-incrimination and has consistently and vigorously protected that right.” Reed, supra, 133 N.J. at 250.
A person invoking the privilege against self-incrimination may do so “'in any . . . proceeding, civil or criminal, formal or informal, where the answers might tend to incriminate him in future criminal proceedings.'” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed.2d 409, 418 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed.2d 274, 281 (1973)); Banca v. Town of Phillipsburg, 181 N.J. Super. 109, 114-15 (App. Div. 1981); see New Jersey Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994). However, the privilege is not self-executing under either federal or state law and must be invoked by anyone claiming its protection. Murphy, supra, 465 U.S. at 428-29, 104 S. Ct. at 1142-43, 79 L. Ed. 2d at 419-20; Reed, supra, 133 N.J. at 251. Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary. Murphy, supra, 465 U.S. at 429, 104 S. Ct. at 1143, 79 L. Ed. 2d at 420; State v. Fary, 19 N.J. 431, 435 (1955)."
He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.
He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.
To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.
Kenneth Vercammen & Associates, P.C,
2053 Woodbridge Avenue,
Edison, NJ 08817,