NEW YORK— There are some people who go to Washington D.C to serve— and others who go to simply remain silent.
Oliver North and Mark McGwire are a few notable examples of individuals who have asserted their Fifth Amendment right on the hill— and now pharma CEO Martin Shkreli can be added to the list.
Shkreli was not amused after being dragged before members of congress to answer questions— and he is not alone. There have been others like him who have plead the fifth— so is it good that the American judicial system offers this strategic avenue of silence?
"It's a necessary evil," said Stephen Murphy a civil trial attorney in private practice, who began his career as a state homicide prosecutor from Brooklyn.
"When you go into the congressional hearings and you assert your Fifth Amendment right, there is a general belief, 'Hey if you have something that is going to help you then jump out and say it. You have to nail me down to the chair not to say I didn't do this, what you are saying is wrong.' But you've got to think about this way, is the guy going to walk himself into the clink," said Murphy.
The act of invoking a person's Fifth Amendment right is a strategy practiced in courtrooms and law enforcement offices around the nation on a daily basis.
Routinely there are 1 to 2 people asking questions, however, in Congress the dynamics are much different according to Murphy.
"You've got trained lawyers who have done this for a living and they are operating in kind of the Wild West. They can ask whatever they want and there are no rules and you can't jump up and say, 'Hey, I don't like that question,' so you are really putting your client in a tough spot when you put them up there," Murphy said.
"There is a natural reaction that when people know something and are not telling it, that there something they are hiding," criminal defense attorney Nathaniel Marmur said.
While there are many parties who are guilty who prefer to force the government to prove the burden of proof, both Murphy and Marmur say it is not uncommon for someone who is completely innocent to take the fifth.
"The Supreme Court has said that the Fifth Amendment is there to protect not just the guilty but more importantly the innocent and you could have people who are not good witnesses, where the facts are confusing or sometimes you may have somebody who has a previous record for example and they are innocent of what is being charged, but if they take the stand, their priors will come out and that can have a very negative impact of course on a jury," Marmur said.
As for the number of times Marmur has taken the position of the asserting his Fifth Amendment right, "I have never exercised the fifth amendment, except with respect to my wife."