Can a Prosecutor Call a Defendant as a Witness?

6 months ago by Justin M. Schiks

You have to refer to the Fifth Amendment of the U.S. Constitution when it comes to calling witnesses. This amendment says that a defendant does not have to, in a criminal case, be a witness against themself.

Therefore, a prosecutor cannot make a defendant speak out about their case. Instead, they can remain silent and choose not to take the witness stand. Neither can the defendant’s attorney nor a judge force a defendant to testify. This is true if you’re caught up in a criminal trial.

However, you may be asked to testify by a prosecutor in a civil case. If so, you can invoke your Fifth Amendment right against self-incrimination. This right extends to both civil and criminal cases for anyone who chooses to take the witness stand.

Reasons for Pleading the Fifth

So, why would you plead the fifth if you’re innocent?

Let’s look at the following example.

Let’s say that you were employed to take care of a toddler. However, the toddler suffered bruising. Moreover, you were alone with the infant several times before the injuries were discovered. Even though you did not cause the injuries, you would still plead the fifth. Otherwise, you might look guilty to the court or jury.

Moving for Stay in a Criminal Case

Sometimes, both criminal cases and civil cases take place simultaneously. In these instances, you might move for a stay in either the criminal or civil case until a verdict is reached in one of the trials. 

Let’s say you choose to move for a stay in your civil case. If you’re acquitted of a crime, you don’t have to worry about pleading the fifth. Otherwise, what you say in your criminal case may be used against you in your civil case.

Unfortunately, if you’re found guilty in a criminal case, it will prevent you from denying some of the alleged facts in the civil trial.

So, everything is a balancing act. If you feel confident that you can win your criminal case and you face a civil trial, you can move for a stay in the civil case.

That’s why you need to work with an experienced criminal defense attorney. They can help you develop a defense strategy so you can achieve the best possible outcome in court.

Exerting Your Sixth Amendment Rights

While you can remain silent if a prosecutor calls you as a witness in a criminal case, the Sixth Amendment of the Constitution does allow you to face the witnesses for the prosecution. 

This is done through cross-examination. 

Why a Prosecutor Might Call a Defendant as a Witness

If a prosecutor chooses to call a defendant as a witness, they may be doing so to strengthen their case and weaken the credibility of the defendant. For example, the defendant may have inconsistencies in their story – something a prosecutor may try to exploit. 

Moreover, the prosecutor might try to use a leading question to elicit an admission or a statement that points to possible guilt.

The prosecutor might do this by posing a question that is meant to instill doubt in the jurors’ minds. They can easily do this if they have evidence that conflicts with the defendant’s account of the case. This is done to emphasize any discrepancies in a defendant’s story.

That’s why you must rely on the services of an experienced criminal defense attorney if you’re facing criminal charges. Make sure you have all of your legal bases covered so you can go forward and exert your constitutional rights. 

Contact a Criminal Defense Attorney for a Consultation.

To obtain legal counsel in Minnesota, contact JS Defense, PA. Discuss your case today. Make sure you know what you can and cannot say.