The Criminal Defendant

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 197-200

Another key distinction among types of proceedings is between civil and

criminal matters. Reduced to the most basic level, the difference is jail. A

civil matter, whether litigation, administrative, or any other kind, can result

in money damages or nes, and orders for what individuals or entities can

or cannot do. A criminal matter can result in all of this, plus a criminal

conviction and the possibility of imprisonment.

There are many differences in procedures; for example, police and a

grand jury enter into a criminal investigation, and a criminal defendant has

a right to a jury trial. However, one of the most signicant differences is

that in a criminal matter (or any matter in which there are potential crimi-

nal implications), the witness has a constitutional right not to be forced to

testify. This right appears in most state constitutions, but it is most com-

monly referred to by its location in the Constitution: the Fifth Amendment.

What the Fifth Amendment says is this: “No person . .. shall be compelled

in any criminal case to be a witness against himself.” What it means is that

while you can willingly say something that gets you into trouble, you can-

not be forced to do so. The witness can almost always refuse to answer a

question on the grounds that a truthful answer “may tend to incriminate me.”

People are sometimes reluctant to use this right out of concern that it

means they are saying they did something wrong or that it will be viewed

as such. In a civil case this may be true, because a jury may hear of a wit-

ness’s assertion of Fifth Amendment rights and be allowed to draw inferences

against the witness based on it. However, in a criminal case, from a legal

perspective, the following conditions apply:

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Chapter 33

The Criminal Defendant

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