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Why is the Fifth Amendment so important in cases involving white-collar crime?

The Fifth Amendment contains many protections for the accused, but “taking the Fifth” or “pleading the Fifth” generally refers to invoking the privilege against self-incrimination – in other words, refusing to submit to police interrogation or otherwise answer questions posed by the police or prosecutors.

White-collar cases, particularly those involving securities fraud or other complex laws, typically involve lengthy periods of investigation before charges are ever filed.  During this period, the police or government investigators may approach you for your help in their investigation.  You may or may not be the target of their investigation at this time.  However, your “cooperation” may actually be helping the government to build a case against you.  At the same time, refusing to cooperate with the police can lead to a charge of obstruction of justice.  You should always be entitled to speak with a lawyer before answering any questions, and it is always advisable to exercise this important right.

Whether or not you have been arrested and charged with a crime, the Fifth Amendment privilege exists at all custodial interrogations.  Even though you may not be under arrest, if you do not feel free to leave, you may be “in custody,” and no statements made by you can be used against you unless they are offered voluntarily after you have been advised of your rights, commonly known as Miranda warnings.

What other rights do I have under the Fifth Amendment?

The prohibition against double jeopardy can be found in the Fifth Amendment, as well as the requirement of due process of law.  However, most of the rights of the accused are found primarily in the Sixth Amendment and are at least as important to the defendant as the privilege against self-incrimination.  Under the Sixth Amendment, in any criminal case, you have the right to a speedy and public trial before a jury of your peers.  You also have the right to know the charges against you.  You have the right to confront the witnesses against you, and to cross-examine them, as well as the right to present witnesses to testify on your behalf.

You also have the right to the assistance of counsel in your defense.  Although you are not entitled to the best possible representation, this right has been interpreted to mean that you are entitled to competent representation.

Many of these rights can be waived if they are not preserved correctly or asserted in a timely manner.  It is therefore very important that you consult an attorney as soon as possible and do not take action on your own without first discussing the matter with your lawyer.

Is it better to negotiate a plea or go to trial?

There are many factors which influence this decision, so there is no blanket answer which covers all situations.  These factors include the strength of the prosecutor’s case and the strength of any defenses available to the accused.  The existence of any criminal history of the defendant should also be considered, especially in light of “three strikes laws” in many states and other penalty enhancements for people convicted of multiple offenses.    It should also be noted that the outcome of a trial is never certain, regardless of the facts going in to trial.

One thing that is certain is that the decisions whether to accept a plea and whether to go to trial are the defendant’s alone to make.  While the lawyer can advise the client, the ultimate decision is in the defendant’s hands.

Can the police search me without a warrant?  What about my home or my car?

The general rule, enshrined in the Fourth Amendment, is that a warrant is required to conduct a search, although there are many exceptions to this rule.  For instance, items which are in plain view may be seized by a police officer who is lawfully in that place at that time, and a search of the person and nearby area may be conducted incident to a lawful arrest.  Automobiles can generally be searched due to their elusive nature, whereas a warrant is generally required to search a home except in exigent (emergency) circumstances.

Consent is another exception to the warrant requirement.  There is nothing to stop a police officer from asking your permission to conduct a search, but you are under no obligation to allow it.  Even the law regarding consent can get complicated, such as when consent is asked of someone who is not the owner of a car, home or handbag for which a search is sought.

Any search must be reasonable, regardless of the circumstances.  The body of Fourth Amendment jurisprudence regarding search and seizure is extensive and cannot be fully explored here.  Any specific question regarding an actual search or seizure should be reviewed with an attorney for a complete answer.

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‘Best Lawyers Names Doron Weinberg as 2011 Lawyer of the Year for Criminal Defense in San Francisco’
Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Doron Weinberg as the "San Francisco Best Lawyers Criminal Defense: Non-White-Collar Lawyer of the Year" for 2011.
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