How to Take the Fifth

Preparing For Court

Obtain a copy of the subpoena that you were served requiring you to testify at the preliminary hearing, if you haven't already. If you have lost your original subpoena, you can contact the clerk of the court where the criminal matter is being handled and request a new copy by providing the docket number or the name of the individual who is being charged. If you have legal representation, provide your attorney with a copy of the subpoena immediately.

Prepare to attend the preliminary hearing. This is the first chance you will have to take the fifth, so you'll definitely want to be present. Dress accordingly: business professional, which means a knee-length skirt, conservative dress or full-length slacks, button-down shirt, conservative blouse or sweater, and a suit jacket for women; slacks, a button-down shirt or polo, suit jacket or three-piece suit, and tie for men. No sneakers, jeans, t-shirts, tracksuits, dresses, revealing clothing, "club wear," ripped or stained clothing, or anything you wouldn't wear to Sunday mass for either gender. Remember, the courtroom is not the place to be setting fashion trends. The goal is to look as professional as possible and blend in with the rest of the crowd.

Arrive at court on the day the hearing is scheduled at least 20 minutes early. Bring along your copy of the subpoena, your photo identification (like your driver's license) and any other documents related to the case that you previously received. Enter the room where the hearing is schedule; you can ask a security guard or clerk for assistance. Find a seat in the gallery and wait quietly. When the bailiff calls the case name and docket for which you were called to testify, approach.

Pleading the Fifth

When you are called to the stand to testify, you will hear the prosecutor say something akin to, "the prosecution calls (your name) to the witness stand." Approach the witness stand, which is the box located next to the judge's bench at the head of the courtroom. The bailiff will then ask you if you "swear to tell the truth, the whole truth, and nothing but the truth, under penalty of perjury, so help you God?" Respond with "I do" or "yes," then sit down.

Immediately after sitting, turn to the judge and say, "Your honor, I respectfully invoke my rights under the Fifth Amendment of the U.S. Constitution on the grounds that answering questions may incriminate me." The judge may direct you to provide your full name, to which you should comply. Answering any other questions will effectively waive your right to take the fifth, and you will then need to answer any additional questions asked of you while on the stand.

Wait until you are excused from the witness stand, then step down and return to the gallery. If you have no other business in court to attend to, you may leave as soon as you are excused.