Former Minneapolis cop Derek Chauvin on Thursday morning declined to testify in his high-profile trial on murder and related charges in George Floyd’s death.
“I will invoke my Fifth Amendment privilege today,” Chauvin said as the defense rested its case.
The Fifth Amendment to the U.S. Constitution provides, in relevant part, that “No person . . . shall be compelled in any criminal case to be a witness against himself.” Criminal defendants who in popular parlance “plead the Fifth” are allowed to do so without jurors drawing negative inferences about their decisions to remain silent. That is because the state bears the burden of convincing a jury that a defendant is guilty beyond a reasonable doubt.
People accused of crimes often do not take the stand in open court for various reasons.
“You can remain seated for this,” Hennepin County Judge Peter Cahill told Chauvin when the time came. “And, Mr. Nelson, make sure you’re close to the microphone.”
Eric Nelson, Chauvin’s defense attorney, then ran through a series of boilerplate questions and comments about the decision not to testify.
“Mr. Chauvin, you and I have had several discussions throughout the course of my representation of you relevant to your right to testify or to choose to remain silent, correct?” the defense attorney asked his client.
“That’s correct,” Chauvin replied.
“And during the course of our representation, it’s fair to say that you and I have had this conversation multiple times, correct?” Nelson asked.
“Correct,” the defendant said.
“You understand that you have a Fifth Amendment privilege to remain silent?” the attorney clarified. “Do you you understand that?”
“Yes,” Chauvin said.
Nelson then offered a tidy explanation of how the privilege works.
“You understand that if you choose to exercise that right to remain silent,” Nelson asked Chauvin, “neither the state nor the court can comment on your silence as a sign or an indication of your guilt — meaning they can’t say: ‘He didn’t get up and defend himself!’ [And] equate your silence with guilt?”
“Now, you also understand that you can waive that right and testify?” Nelson asked. “Do you understand that?”
“Yes,” Chauvin said, “I do.”
“You understand that if you did, in fact, testify, you would be subject to cross-examination by the State of Minnesota?” Nelson asked.
“Yes,” the defendant said.
“You understand that if you were cross-examined by the state, we could not attempt to limit the scope of your testimony, the state would be given broad latitude to ask you questions, do you understand that?” the attorney explained and asked.
“Yes,” Chauvin replied.
Nelson went on to ask Chauvin a series of questions that sought to make clear to the court that the defendant was making the decision on his own, that he was free to make the decision one way or another, that his counsel had explained, advised and discussed the decision with him on numerous occasions. The language was as much prophylactic for the defense attorney as it was for the defendant himself. The final decision on whether or not Chauvin would testify, however, the attorney and his client made clear, came about after a lengthy discussion the night before and remained entirely with the client himself.
Judge Cahill, removing his mask to account for the solemnity of the occasion, addressed Chauvin after the defendant announced his intent to remain silent. The court wanted to be certain that Chauvin, not Nelson, had not made the decision over whether to take the stand. Attorneys can counsel their clients in this regard but cannot ultimately make the decision themselves.
“The decision ultimately has to be yours and not his,” the judge noted before asking: “Is this your decision not to testify?”
“It is, your honor,” Chauvin replied.
[image via screengrab/Law&Crime Network]
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