Is taking the Fifth Amendment under oath considered perjury?
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UPDATED: Aug 28, 2024
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UPDATED: Aug 28, 2024
It’s all about you. We want to help you make the right legal decisions.
We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.
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.
Case Studies: Fifth Amendment and Perjury
Case Study 1: John’s Right to Silence
John is called as a witness in court. He believes that telling the truth would incriminate him in a crime. In order to protect himself, John exercises his Fifth Amendment right against self-incrimination and chooses not to testify, avoiding potential perjury charges.
Case Study 2: Sarah’s Legal Consultation
During Sarah’s testimony, the judge suspects that her statements might implicate her in a crime. The judge pauses the proceedings, allowing Sarah to consult with her attorney. If advised against self-incrimination, Sarah can invoke her Fifth Amendment right and avoid perjury accusations. Otherwise, she must testify truthfully.
Case Study 3: Exceptions for Mark’s Testimony
Mark finds himself in a situation where he cannot plead the Fifth Amendment. The statute of limitations has expired for the crime he might implicate himself in. If Mark provides false testimony, he can be charged with perjury, as exceptions to the Fifth Amendment apply.
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Mary Martin
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Mary Martin has been a legal writer and editor for over 20 years, responsible for ensuring that content is straightforward, correct, and helpful for the consumer. In addition, she worked on writing monthly newsletter columns for media, lawyers, and consumers. Ms. Martin also has experience with internal staff and HR operations. Mary was employed for almost 30 years by the nationwide legal publi...
Published Legal Expert
Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.