Wendi Adelson Requests to Invoke the Fifth When Called to Testify, But What Does it Mean to “Invoke the Fifth”?

May 19, 2022 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

Taking the Fifth and pleading the Fifth has been a part of our culture and media for a long time. However, invoking the Fifth isn’t as easy as just shouting “I plead the Fifth!” The following blog will describe what invoking the Fifth means and what it means for Wendi Adelson in the ongoing retrial of Katherine Magbanua for the conspiracy to kill Dan Markel.

Fifth Amendment Explained

The Fifth Amendment is a pillar of our culture and criminal justice system. The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

There are many rights granted to Americans in the Fifth Amendment. The right to remain silent (also known as the privilege against self-incrimination) is pulled from “no person … shall be compelled in any criminal case to be a witness against himself.” The fifth amendment not only applies to criminal defendants in their own trial, but the privilege against self-incrimination also applies to police investigations and subpoenas to provide testimony under oath. 

You can’t just “plead the Fifth” in a trial, there are preliminary motions that must be filed before you can invoke the Fifth Amendment. Before you can “plead the Fifth,” you must show that there is a reasonable fear that a response will be incriminatory. To do this, a motion is filed in court to allow a witness to plead the fifth, and the court rules on these motions. There are a few exceptions where you do not have to follow these procedures but generally, the witness that wishes to invoke the Fifth must follow the procedures first. One of the exceptions is the criminal defendant. In the Supreme Court case Griffin v. California, the Court held that the criminal defendant need not take the stand and assert the privilege at his own trial. The accused has the absolute right not to testify.

Traditionally, a witness in a trial may claim the privilege against self-incrimination when the testimony that would be given might be used against them in a future criminal proceeding or when it might be exploited to uncover other evidence against them. Again, there must be a reasonable fear that the testimony will be incriminatory, however, if the prosecution makes a promise to not prosecute the witness or if the prosecution extends immunity (meaning that the testimony will not be used against them)

Put simply, the following elements need to be satisfied for an individual to “plead the Fifth”:

• A person’s oral communication is being compelled (i.e.. subpoena, police interrogation, or other legal proceedings)
• The communication is testimonial. Something is testimonial if the actions or words either express or imply an assertion of fact or belief. For example, stating “yes” to a question is testimonial and the action of nodding can also be testimonial if the nodding is in response to a question. Non-testimonial covers items such as documents, DNA evidence, and actions that don’t implicate an assertion of a fact or belief.
• The testimony must be self-incriminating. The testimony is self-incriminating if the information would lead to the discovery of incriminating evidence.

Wendi Adelson in the Retrial of Katherine Magbanua

Wendi Adelson is the ex-wife of Dan Markel, an FSU law professor who was shot and killed in 2014. Wendi Adelson divorced Mr. Markel a year before his death. According to an affidavit filed in 2019, investigators believe that the motive for Mr. Marke’s murder stemmed from the desperate desire of the Adelson family to relocate Wendi and the children to South Florida. Prosecutors believe that the Adelsons paid $100,000 to have Dan Markel killed.

In 2019, in the first trial of Katherine Magbanua, Wendi Adelson testified on the stand under the immunity of the prosecution, meaning the prosecution would not use the testimony again Wendi Adelson in a future criminal case.

On Friday, May 13, 2022, Wendi Adelson’s legal team filed a motion to permit Ms. Adelson to invoke the fifth on the stand outside of the hearing of the jury and asked the judge to quash the subpoena from the defense team calling her to testify for the defense’s case. Ms. Adelson’s attorney, John Lauro said, “given the state’s theory of the case, there is no question that Adelson has a real and substantial interest in asserting her rights against compelling testimony.” Ms. Adelson wants to invoke her Fifth Amendment on the record outside the presence of the jury because the jury may believe that her testimony is false if she invokes the Fifth in front of them. State subpoenas in Florida have a unique element to them. Under Florida law, when a witness complies with a subpoena from the state prosecutors then the testimony cannot be used against them in a future action. For Adelson, this means that she will have to testy in Magbanua’s trial because she has this immunity.

However, Magbanua’s defense also has subpoenaed Adelson for their case. According to Mr. Lauro, the defense team is trying to “piggyback” off the state’s subpoena meaning the defense team is trying to use the immunity from the prosecution’s subpoena to also have Adelson testify in the defense’s case. Mr. Lauro argues that the defense team cannot use the state subpoena in that manner because Florida law only extends immunity to witness’s responding to subpoenas from the state, not the defendant. Lauro goes on to argue that if Adelson testifies for the defense, then her Fifth Amendment rights are waived and she won’t have protection from self-incrimination. Judge Robert Wheeler has yet to make a ruling on Adelson’s motion.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been accused of a crime, it is important to prioritize finding the right legal help. Navigating through criminal charges can be extremely stressful, especially trying to do it on your own. At Pumphrey Law Firm, we guarantee top-quality defense for your case. Don Pumphrey and his team understand the importance of strategizing a strong defense and are prepared to stand in your corner and fight for your freedom. Call (850) 681-7777 or leave an online message today and schedule a free consultation with an experienced Tallahassee criminal defense attorney. 

Written by Melissa MacNicol

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