Three Chicago police officers appeared in court to answer charges that they helped conceal the circumstances of a fatal police shooting involving Officer Jason Van Dyke and 17-year-old Laquan McDonald.
As a result of the indictments, if Detective David March, Officer Joseph Walsh, and Officer Thomas Gaffney are called as witnesses at Officer Van Dyke’s trial, they will probably invoke their Fifth Amendment rights and refuse to testify, according to their lawyers. If so, Officer Van Dyke’s defense would suffer a serious blow. His attorney, Daniel Herbert, went even further, and decried the coverup prosecution as “further proof that the government is determined to prevent Jason Van Dyke from receiving a fair trial by silencing any potential witnesses.” Other legal observers expressed doubt that prosecutors brought charges against March, Walsh, and Gaffney to strengthen the Van Dyke case.
Video released several months after the incident appears to show Officer Van Dyke shooting the knife-wielding Mr. McDonald 17 times as the teenager walked away from the officer.
The right to refuse to be a witness against oneself is one of the most sacrosanct in the Constitution, and despite the seemingly straightforward language in the Fifth Amendment, it is also one of the most controversial ones.
This provision only applies in criminal proceedings, which is why defendants are often required to testify in DUI-related drivers’ license suspension or reinstatement hearings. To “claim the fifth” as a witness, the person usually needs to establish that specific answers to specific questions would either be used as evidence in a parallel proceeding or would be evidence of a crime that could be charged under the penal code. The privilege is a little looser when it comes to defendants testifying in their own trials, but there are some other concerns here that are discussed below.
Furthermore, the privilege only applies to testimonial evidence, and not to physical evidence. However, the line between the two is often blurry. A skilled criminal defense attorney can help a defendant navigate these complex nuances of trial procedure.
Many times, the jury does not initially understand the Fifth Amendment and expects the defendant to testify at trial; furthermore, the jury may assume that the defendant has something to hide if he or she does not testify. These concerns are easily dealt with during jury selection, with questions like “What does the Fifth Amendment say?” and “What are some reasons that a person would not want to testify?” Typically, a juror will say something like “The Fifth Amendment gives people the right not to incriminate themselves” and “A person may not want to testify at trial because s/he is very nervous.”
The decision to testify or not testify should be the defendant’s and the defendant’s alone. Typically, it is a bad idea for a defendant to testify, since the prosecutor will then have the opportunity to cross-examine the defendant. However, there are always exceptions, and more than one criminal trial has been won because the defendant gave compelling testimony in his or her own defense.
Reach Out to Aggressive Attorneys
A defendant can nearly always choose whether or not to testify in a criminal case. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Gabriel Santiago)