By Micheal Smiths, New York

The smartest move I ever witnessed in court, which occurred before I learned the law, was during a domestic violence hearing. I could tell that when the woman and man, or plaintiff and defendant respectively, took their seats before the judge that this case was going to be a lot of he said, she said crap. Then the woman’s attorney entered. The man/defendant represented himself. The woman had no witnesses or pieces of evidence that could back up her story, but she did provide the court with a harrowing account of what her boyfriend allegedly did to her. When her boyfriend took the stand, the first thing he said was that everything his ex had said was a lie. And that’s when it happened. Her attorney said in a very calm manner, “Sir, instead of going through all of these details again, would you rather invoke your 5th amendment constitutional right to not self incriminate?”

The man hesitated for a moment and then agreed. I didn’t know it at the time but that was a very dumb move.

You see, I learned that day that just because you invoke your 5th amendment right doesn’t mean you didn’t incriminate yourself. In a court proceeding, the judge can and will take a negative inference from any person who takes the 5th amendment. So even though the man didn’t admit to doing anything wrong, he didn’t deny it either. That was his nail in the coffin. Judge sided with the plaintiff. Case closed.

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